HE 

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Ifelfc 


UC-NRLF 


a 

in 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


PRESENTED  BY 

PROF. CHARLES  A.  KOFOID  AND 
MRS.  PRUDENCE  W.  KOFOID 


PANAMA  CANAL  TOLLS 


THE   TRADITIONAL  POLICY   OF  THE    UNITED   STATES  IN 
RELATION  TO  WATERWAYS 


SPEECH 


OF 


HON.  THEODORE  E.  BURTON 

OF    OHIO 


X   THE 


SENATE  OF  THE  UNITED  STATES 


MAY  19,  1914 


l:i  !_'! 


WASHINGTON 
1914 


HE533 


SPEECH 

OF 

HON.    THEODORE    E.    BURTON. 


The  Senate,  as  in  Committee  of  the  Whole,  had  under  consideration 
the  bill  (II.  It.  14385)  to  amend  section  5  of  an  act  to  provi<l.>  for  th«» 
opening,  maintenance,  protection,  and  operation  of  the  Panama  Caual 
and  the  sanitation  of  the  Canal  Zone,  approved  August  24,  1912. 

THE    TRADITIONAL    POLICY    OF    THE    UNITED    STATES    IN    RELATION    TO 
WATERWAYS. 

Mr.  BURTON.  Mr.  President,  in  support  of  the  bill  to  repeal 
the  exemption  of  our  coastwise  shipping  from  the  payment  of 
tolls  in  the  Panama  Canal  three  classes  of  arguments  have  been 
earnestly  and  ably  presented  to  the  Senate. 

First.  That  the  Hay-Pauncefote  treaty  of  1901  requires  en- 
tire equality  among  nations,  and  consequently  the  exemption  of 
any  shipping  of  the  United  States  is  a  violation  of  its  provi- 
sions. It  is  further  argued  that  even  if  the  treaty  in  itself 
does  not  forbid  discrimination,  at  least  when  negotiations  and 
treaties  made  before  and  after  are  considered  with  it,  the  in- 
hibition is  absolutely  conclusive. 

Second.  The  economic  argument  that  the  exemption  from 
payment  of  tolls  constitutes  a  subsidy,  and  that  is  not  justified 
by  our  laws,  is  contrary  to  the  spirit  of  our  institutions,  and  is 
opposed  by  the  party  in  power  and  by  many  adherents  of  the 
Republican  Party.  In  this  connection  it  is  maintained  that  the 
exemption  will,  not  materially  benefit  producer  or  consumer  or 
aid  in  reducing  rates  on  transcontinental  railroads. 

Third.  The  opinion  of  other  nations.  It  is  alleged  that  this 
opinion  is  practically  unanimous  against  us.  The  President, 
in  his  brief  and  forcible  message,  while  regarding  the  exemption 
as  a  mistaken  economic  policy  from  every  point  of  view  and  in 
plain  contravention  of  the  treaty  with  Great  Britain,  adds: 
"  The  meaning  of  the  treaty  is  not  debated  outside  of  the  United 
States.  Everywhere  else  the  language  of  the  treaty  is  given 
but  one  interpretation,  and  that  interpretation  precludes  the 
exemption."  He  also  gives  an  intimation  of  "  matters  of  even 
greater  delicacy  and  nearer  consequence  "  with  which  he  will 
have  difficulty  in  dealing  unless  the  exemption  act  is  repealed. 

The  distinguished  Senator  from  Massachusetts  has  aptly 
expressed  this  argument  in  quoting  from  the  Declaration  of 
Independence  the  words,  "a  decent  respect  for  the  opinion>  <>!' 
mankind,"  to  which  he  added,  ''and  the  high  position  of  the 
United  States  among  the  nations  of  the  world." 

But  in  addition  to  these  three,  there  is  still  a  further  argu- 
ment equally  potent  in  favor  of  repeal,  and  that  is  tli 
diiional  and  practically  uniform  policy  of  the  Unite:!  States 
in  advocating — yes,  demanding — the  free  and  equal  use  of  navi- 
gable channels  or  walerwuj'S.  Our  policy  in  this  regard  is  a# 
45828—13421  3 


4: 

near  to  being  invariable  as  upon  any  important  national  ques- 
tion. It  is  much  more  constant  than  our  record  as  regards  the 
relation  of  the  Federal  Government  to  the  States  or  upon  tariff 
or  foreign  affairs. 

Nations,  like  individuals,  have  their  distinctive  qualities,  opin- 
ions, and  aspirations  which  shape  their  course  and  determine 
their  standing  among  the  countries  of  the  world.  Thus  their 
movements  may  be  forward  or  backward.  They  may  advance 
the  cause  of  human  liberty  or  retard  its  development.  They 
may  promote  international  confidence  or  breed  discord  and 
repulsion. 

German  idealism  has  given  to  nations  the  attribute  of  per- 
sonality. The  great  Swiss-German  publicist,  Kluntschli,  says: 

Individual  States  differ  like  individual  men  in  spirit,  character,  and 
form.  *  *  *  While  history  explains  the  organic  nature  of  the 
State,  we  learn  from  it  at  the  same  time  that  the  State  does  not  stand 
on  the  same  grade  with  the  lower  organisms  of  plants  and  animals,  hut 
is  of  a  higher  kind  ;  we  learn  that  it  is  a  moral  and  spiritual  organism, 
a  great  body  which'  is  capable  of  taking  up  into  itself  the  feelings  and 
thoughts  of  the  nation,  of  uttering  them  in  laws,  and  realizing  them 
in  acts  ;  we  are  informed  of  moral  qualities  and  of  the  character  of 
each  State.  History  ascribes  to  the  State  a  personality  which,  having 
spirit  and  body,  possesses  and  manifests  a  will  of  its  own.  *  *  * 

The  recognition  of  the  personality  of  the  State  is  thus  not  less  indis- 
pensable for  public  law  (Statsroeht)  than  for  international  law  (Volker- 
recht). 

The  United  States  from  the  very  beginning  insisted  upon 
certain  fundamental  principles,  such  as  that  all  men  are  created 
equal;  that  governments  derive  their  just  powers  from  the  con- 
sent of  the  governed.  The  basis  of  the  demand  for  equal  use 
of  channels  is  found  in  the  essential  ideas  which  actuated  the 
American  Revolution.  Liberty  and  equality  of  rights  demanded 
as  a  concomitant  equality  of  opportunity  and  unrestricted  prog- 
ress. Progress  and  equality  of  opportunity  require  common 
access  to  those  utilities  and  agencies  which  are  necessary  for  the 
use  and  benefit  of  mankind. 

Thus  we  see  that  from  the  very  first  our  ancestors  stren- 
uously insisted  upon  the  abolition  of  exactions  and  the  removal 
of  restrictions  which  royal  privilege  had  imposed  or  which  had 
been  accepted  as  belonging  to  countries  because  of  favorable 
location  or  other  advantages.  Many  of  the  colonists  prior  to 
the  Revolution  had  been  actively  engaged  in  trade  and  in  com- 
merce by  sea.  One  of  the  accusations  against  King  George  III 
in  the  Declaration  of  Independence  is  "  for  cutting  off  our 
trade  with  all  parts  of  the  world." 

In  the  report  of  the  committee  of  the  Continental  Congress, 
in  response  to  the  conciliatory  resolution  proffered  by  Lord 
North  in  1775,  complaint  was  made  that  freedom  of  movement 
had  been  denied  to  the  ship;:,  of  the  colonies.  The  report,  sub- 
mitted to  Congress  on  July  25, 1775,  is  in  the  following  language: 

On  the  contrary,  to  show  they  mean  no  discontinuance  of  injury,  they 
pass  acts,  at  the  very  time  of  holding  out  this  proposition,  for  restrain- 
ing the  commerce  and  fisheries  of  the  province  of  New  England,  and 
for  interdicting  the  trade  of  other  colonies  with  all  foreign  nations  and 
with  each  othf  r.  This  proves  unequivocally  they  mean  not  to  relinquish 
the  exercise  of  indiscriminate  legislation  over  us. 

ILLUSTRATIONS    OF    CLAIM     OF    NATURAL    RIGHTS     IN    NAVIGABLE     STREAMS. 

This  claim  of  a  natural  right  was  asserted  by  the  Continental 

Congress   during   the   Revolutionary   War  in   a   demand    made 

upon   Spain  for  the  free  navigation  of  the  Mississippi  River. 

The  domain  of  Spain  then  extended  along  the  westerly  bank 

45S2S— 13421 


of  the  Mississippi  and  on  tin-  easterly  bank  from  liie  mouth  to 
the  pivs'.-iit  northerly  boundary  of  the  State  of  Louisiana,  paral- 
lel ;;i  of  north  latitude.  On  the.  <ilh  of  August,  in  the  year  177!), 
the  minister  of  the  United  States.  .Mr.  John  Jay.  was  authorized, 
by  resolution — 

to  conclude  with  France  and  Spain  a  treaty  or  treaties,  offensive  .->•• 
defensive,  in  whirh  offensive  or  defensive  treaty  nevertheless  you  shall 
insert  on  the  part  of  your  State  a  proper  article  or  articles  for  obtain- 
ing the  free  navigation  of  the  River  Mississippi. 

The  following  month  a.  similar  resolution  was  passed  and 
made  the  bnsis  for  instructions  to  Mr.  Jay.  The  'liability  to 
agree  on  this  subject  prevented  the  making  of  a  treaty.  Not- 
withstanding the  earnest  desire  for  a  treaty  of  friendship  and 
alliance  with  Spain,  the  Members  of  the  Continental  Congress 
refused  to  enter  into  any  engagement,  however  favorable,  unless 
the  free  navigation  of  tho  Mississippi  was  assured. 

On  the  2d  of  October,  1780,  Benjamin  Franklin,  in  writing  a 
letter  to  Mr.  Jay,  said  : 

Poor  as  we  are,  yet  as  I  know  we  shall  be  rich,  I  would  rather  agree 
with  them  (Spain)  to  buy  at  a  great  price  the  whole  of  (heir  right  on 
the?  Mississippi  than  sell  a  drop  of  its  waters.  A  neighbor  might  as 
well  ask  me  to  sell  my  street  door. 

As  the  war  was  protracted  and  the  success  of  the  colonies 
became  less  promising,  the  Congress  became  less  Insistent.  It 
seems  to  have  been  the  opinion  'that  the  river  had  been  used  by 
the  United  States  without  trouble  with  Spain,  aud  there  was 
no  reason  to  fear  that  the  friendly  disposition  between  the  two 
nations  would  be  interrupted.  The  minister  was  authorized,  in 
1781,  if  he  could  not  obtain  the  desired  concession,  to  recede 
from  it.  No  final  agreement,  however,  was  entered  into,  and 
the  question  was  left  open  until  the  matter  was  again  taken  up 
by  Mr.  Jefferson  in  the  year  1792,  to  which  I  shall  make  refer- 
ence later. 

The  next  manifestation  of  this  policy  was  before  the  adop- 
tion of  the  Federal  Constitution.  In  the  negotiations  for  the 
preliminary  treaty  of  1782  with  Great  Britain,  October  8, 
Benjamin  Franklin  and  John  Jay,  commissioners  on  behalf  of 
the  United  States,  submitted  a  draft,  which  contained  the  fol- 
lowing provision : 

Fourthly.  That  the  navigation  of  the  River  Mississippi  from  its  source 
to  the  ocean  shall  forever  remain  free  and  open,  and  that  both  there 
and  in  all  rivers,  harbors,  lakes,  ports,  and  places  belonging  to  His 
Britannic  Majesty  or  to  the  United  States,  or  in  any  part  of  the 
world,  the  merchants  and  merchant  ships  of  the  one  and  the  other 
shall  be  received,  treated,  and  protected  like  the  merchants  and  mer- 
chant ships  of  the  sovereign  of  the  country.  That  is  to  say,  tho 
British  merchants  and  merchant  ships,  on  the  one  hand,  shall  enjoy  in 
the  United  States  and  in  all  places  belonging  to  them  the  same  'pro- 
tection and  commercial  privileges  and  be  liable  only  to  the  same  charges 
and  duties  as  their  own  merchants  and  merchant  ships:  and.  on  the 
other  hand,  the  merchants  and  merchant  ships  of  the  United  Stales 
shall  enjoy  in  all  places  belonging  to  His  Britannic  Majesty  the 
protection  and  commercial  privileges  and  be  liable  only  to  the  same 
charges  and  daties  of  British  merchants  and  merchant  ships,  saving 
always  to  the  chartered  trading  companies  of  tJreat  Britain  such 
exclusive  use  and  trade  and  their  respective  posts  and  establishments 
as  neither  the  subjects  of  CJrcat  Britain  nor  any  of  the  more  favored 
nations  participate  in. 

This   was   refuse;!. 

On  April  29,  17s:;,  the  American  commissioners  p<- 
Mr.  Hartley,  the  British  commissioner,  an  art.'cle  for  the  pro- 
45828—13421 


6 

posed  final  treaty  giving  equal  rights  to  both  nations  in  the  navi- 
gable waters  of  each.  It  was  in  the  following  language : 

All  rivers,  harbors,  lakes,  ports,  and  places  belonging  to  the  United 
Stales,  or  any  of  them,  shall  be  open  and  free  to  the  merchants  and 
other  subjects  of  the  Crown  of  Great  Britain  and  their  trading  vessels, 
who  shall  be  received,  treated,  and  protected  like  the  merchants  and 
trading  vessels  of  the  States  in  which  they  may  be  and  be  liable  to  no 
other  charges  or  duties 

And,  reciprocally,  all  rivers,  harbors,  lakes,  ports,  and  places  under 
the  dominion  of  His  Britannic  Majesty  shall  thenceforth  be  open  and 
free  to  the  merchant  trading  vessels  of  the  said  United  States,  and  of 
each  and  every  of  them,  who  shall  be  received,  treated,  and  protected 
like  the  merchants  and  trading  vessels  of  Great  Britain  and  be  liable 
to  no  other  charges  and  duties,  saving  always  to  the  chartered  trading 
companies  of  Great  Britain  such  exclusive  use  and  trade  of  their 
respective  ports  and  establishments  as  neither  the  other  subjects  of 
Great  Britain  nor  any  of  the  most  favored  nations  participate  in. 

It  will  thus  be  seen  that  a  new  and  advanced  principle  with 
reference  to  freedom  of  navigation — that  of  entire  equality  in 
the  use  of  both  national  and  international  waters — was  pre- 
sented by  these  eminent  patriots,  all  of  whom  were  so  prominent 
in  the  early  days  of  this  Eepublic  and  had  so  much  to  do  in 
shaping  our  institutions  and  policies. 

May  21,  1783,  Mr.  Hartley  made  a  counter  proposition,  which 
only  gave  equality  in  import  and  export  duties  to  the  ships  of 
both  countries. 

The  reason  why  the  offer  of  the  American  commissioners  was 
not  accepted  is  set  forth  very  fully  in  the  reply  of  Mr.  Hartley, 
the  British  commissioner,  of  May  21,  1783: 

A  proposition  having  been  offered  by  the  American  ministers  for  the 
consideration  of  His  Britannic  Majesty's  ministers  and  of  the  British 
nation  for  an  entire  and  reciprocal  freedom  of  intercourse  and  commerce 
between  Great  Britain  and  the  American  United  States  in  the  following 
words — 

Then  follows  the  article  suggested  by  the  American  commis- 
sioners of  April  29,  1783,  given  above : 

It  is  to  be  observed  that  this  proposition  implies  a  more  ample  par- 
ticipation of  British  commerce  than  the  American  States  possessed  even, 
under  their  former  connection  of  dependence  upon  Great  Britain,  so  as 
to  amount  to  an  entire  abolition  of  the  British  act  of  navigation  in  re- 
spect to  the  33  United  States  of  America,  and  although  proceeding  on 
their  part  from  the  most  conciliatory  and  liberal  principles  of  amity  and 
reciprocity,  nevertheless  it  comes  from  them  as  newly  established  States, 
and  who,  in  consequence  of  their  former  condition  of  dependence,  have 
never  yet  had  any  established  system  of  national  commercial  laws,  or  of 
commercial  connections  by  treaties  with  other  nations,  free  and  unem- 
barrassed of  many  weighty  considerations,  which  require  the  most  scru- 
pulous attention  and  investigation  on  the  part  of  Great  Britain,  whose 
ancient  system  of  national  and  commercial  policy  is  thus  suddenly 
called  upon  to  take  a  new  principle  for  its  foundation,  and  whose  com- 
mercial engagements  with  other  ancient  States  may  be  most  materially 
affected  thereby.  For  the  purpose,  therefore,  of  giving  sufficient  time 
for  the  consideration  and  discussion  of  so  important  a  proposition  re- 
specting the  present  established  system  of  the  commercial  laws  and; 
policy  of  Great  Britain  and  their  subsisting  commercial  engagements 
with  foreign  powers,  it  is  proposed  that  a  temporary  intercourse  of 
commerce  shall  be  established  between  Great  Britain  and  the  American. 
States  previously  to  the  conclusion  of  any  final  and  perpetual  compact. 
In  this  intervening  period,  as  the  strict  line  and  measure  of  reciprocity, 
from  various  circumstances,  can  not  be  absolutely  and  completely  ad- 
hered to,  it  may  be  agreed  that  the  commerce  between  the  two  coun- 
tries shall  revive,  as  nearly  as  can  be,  upon  the  same  footing  and  terms 
as  formerly  subsisted  between  them,  provided  always  that  no  concession 
on  either  side  in  the  proposed  temporary  convention  shall  be  argued 
hereafter  in  .support  of  any  future  demand  or  claim.  In  the  meantime 
the  proposition  above  stated  may  be  transmitted  to  London,  requesting 
(with  II is  Majesty's  consent)  that  it  may  be  laid  before  Parliament  for 
458128 — 13421 


their  consideration^  *  *  *  With  regard  in  the  West  Indies,  there  is 
no  objection  to  tlii*  must  free  intercourse  between  them  and  the  United 
States.  The  only  restriction  proposed  to  be  laid  upon  that  intercourse 
is  prohibiting  Americ.-m  ships  rjirrying  to  those  colonies  any  other  m'-r- 
d'aniiise  than  the  produce  of  their  own  country.  The  same  observation 
limy  b.'  made  upon  this  restriction  ns  upon  the  former.  It  is  not  meant 
to  affect  the  interests  of  the  United  States,  but  it  is  highly  nee 
lost  foreign  ships  should  make  use  of  the  American  flag  to  carry  on  a 
trade  with  the  British  West  India  Islands. 

It  is  also  proposed,  upon  the  same  principle,  to  restrain  the  ships 
that  may  trade  to  Great  Britain  from  America  from  bringing  foreign 
merchandise  into  Great  Britain.  The  necessity  of  this  restriction  is 
likewise  evident,  unless  Great  Britain  meant  to  give  up  the  whole  navi- 
gation act.  There  is  no  necessity  for  any  similar  restrictions  on  the 
part  of  the  American  States,  those  States  not  having  as  yet  any  acts  of 
navigation. 

In  view  of  the  insistence  of  Great  Britain,  the  American  com- 
missioners were  compelled  to  yield  their  contention. 

The  treaty  was  signed  at  Paris,  September  3,  17S3,  by  John 
A  .la  ins,  lienjamin  Franklin,  and  John  Jay  on  behalf  of  the 
United  States,  and  by  Mr.  Hartley  for  Great  Britain. 

Article  8  is  the  only  one  which  refers  to  navigation.  It  is  as 
follows : 

The  navigation  of  the  River  Mississippi  from  its  source  to  its  mouth 
shall  forever  remain  free  and  open  to  the  subjects  of  Great  Britain  and 
the  citizens  of  the  United  States. 

As  regards  the  refusal  to  grant  reciprocal  use  of  channels, 
Mr.  John  Adams,  in  his  diary  for  Monday,  May  19,  1TS3,  volume 
3  of  his  collected  works,  page  269,  says: 

Mr.  Hartley  informed  us  to-day  that  the  King's  council  had  not 
agreed  to  our  proposition  of  putting  Britons  upon  the  footing  of  Ameri- 
cans in  all  American  ports,  rivers,  etc.,  and  Americans  on  the  footing 
of  Britons  in  all  British  ports,  rivers,  etc.  He  says  he  is  sorry  for 
this,  because  he  thinks  it  just  and  politic,  and  he  shall  ever  be  in 
Parliament  for  bringing  things  to  this  point. 

At  a  later  time  the  question  of  the  navigation  of  that  portion 
of  the  Mississippi  River  flowing  through  the  territory  belong- 
ing to  Spain  was  again  raised.  Mr.  Jefferson,  then  Secretary 
of  State,  claimed  the  right  to  equal  navigation  by  boats  of  the 
United  States  as  a  natural  right,  and  in  his  report  in  1792  on 
nopiliutions  with  Spain  regarding  a  treaty  relative  to  the  navi- 
gation of  the  Mississippi  River  he  said: 

If  we  appeai  to  this  as  we  feel  it  written  in  the  heart  of  man.  what 
sentiment  is  written  in  deeper  characters  than  tint  the  ocean  is  free 
to  all  men  and  the  rivers  to  all  their  inhabitants?  Is  there  a  man. 
or  civilized,  unbiased  by  habit,  who  does  not  feel  and  attest 
this  truth?  Accordingly,  in  all  tracts  of  country  united  under  the  same 
political  society  we  find  this  natural  right  universally  acknowledged 
and  protected  by  laying  the  navigable  rivers  open  to  all  their  inhabit- 
ants. .  When  their  rivers  enter  the  limits  of  another  society,  if  the 
right  of  the  upper  inhabitants  to  descend  the  stream  is  in  any  case 
obstructed,  it  is  an  act  of  force  by  a  stronger  society  against  a  weaker, 
condemned  by  the  judgment  of  mankind. 

In  a  treaty  framed  in  1795  equal  use  of  the  Mississippi  River 
was  provided  for  both  nations  in  the  portions  flowing  through 
territory  belonging  to  Spuin  south  of  the  thirty-first  parallel 
of  north  latitude:  also  in  that,  part  which  served  as  the  western 
boundary  of  the  United  States.  This  treaty  was  ratified  in  the 
year  1700,  during  the  administration  of  President  Washington. 
In  the  following  decade  Madison,  then  Secretary  of  State  under 
President  Jefferson,  made  the  same  claim  with  reference  to 
streams  east  of  the  Mississippi  passing  from  the  United  States 
through  the  Floridas. 
_s  1:5  m 


8 

Iu  a  letter  dated  March  2,  1803,  addressed  to  Messrs.  Liv- 
ingston and  Monroe,  our  representatives  in  France,  he  says : 

The  United  States  have  a  just  claim  to  the  use  of  the  rivers  which 
pass  from  their  territory  through  the  Floridas.  They  found  their 
claims  on  like  principles  with  those  which  supported  their  claims  for 
the  use  of  the  Mississippi. 

For  a  long  time  prior  to  the  beginning  of  the  nineteenth  cen- 
tury the  Barbary  States  had  been  imposing  tribute  upon  vessels 
passing  through  the  Strait  of  Gibraltar.  Their  location  made  it 
easy  for  them,  by  piratical  excursions,  to  capture  merchantmen 
passing  to  and  from  the  Mediterranean,  and  in  settlement  spe- 
cific amounts  were  agreed  upon.  One  singular  feature  of  this 
situation  was  that  Great  Britain  gained  an  advantage  from  the 
conditions  existing,  as  her  subjects  were  able  to  pay  $200,000  annu- 
ally in  the  way  of  tribute,  while  the  other  countries  were  unable 
to  meet  the  demands.  Our  trade  with  Mediterranean  ports  was 
ve-y  considerable.  Our  shipping  had  been  subjected  to  these 
exactions  and  payments  had  been  made  in  the  form  of  ransoms 
for  prisoners  taken,  presents,  and  otherwise.  The  amount  of 
these  payments,  according  to  a  report  of  the  Secretary  of  the 
Treasury,  amounted  to  $2,046,000,  July  SO,  1802.  We  demanded 
that  our  ships  have  free  access  to  the  Mediterranean  without 
the  payment  of  tribute,  and  engaged  in  a  naval  war  which,  in 
the  heroism  displayed,  is  one  of  the  most  notable  pages  in  the 
history  of  the  American  Navy.  Our  contention  for  the  free  use 
of  this  strait  and  for  undisturbed  navigation  of  the  Mediter- 
ranean was  conceded  by  the  Barbary  States.  The  courageous 
stand  of  this  Republic  for  the  rights  of  our  shipping  and  for 
the  freedom  of  commerce  inured  to  the  benefit  of  all  the  com- 
mercial nations  of  the  globe. 

In  the  meantime  the  right  of  free  and  equal  navigation  of 
international  rivers  and  waterways  began  to  be  asserted  in 
Europe.  This  right  had  been  maintained  by  the  Romans  and 
was  affirmed  in  the  institutes  of  Justinian,  but  was  generally 
denied  after  the  ninth  century.  Although  Grotius  had  main- 
tained the  principle  of  equal  use  of  rivers,  a  contrary  view 
prevailed  in  Europe  until  the  French  Revolution.  The  French 
Republic  sought  to  open  the  Rhine  and  other  rivers  to  the  free 
navigation  of  nations  bordering  upon  it. 

The  treaty  of  Paris,  May  30,  1814,  after  the  fall  of  Napoleon, 
went  much  further,  and  laid  down  the  rule  of  free  navigation 
not  solely  for  bordering  States  but  for  all  States.  This  rule 
was  definitely  established  for  the  Rhine,  and  the  treaty  pro- 
vided that  in  a  future  congress  the  general  principle  should  be 
considered  of  extending  the  same  rule  to  all  other  streams 
which  in  their  navigable  course  separated  or  traversed  different 
states. 

At  the  congress  of  Vienna,  in  the  following  year,  articles  108 
to  116,  the  general  principle  was  laid  down.  On  the  3d  of  May, 
1815,  a  treaty  between  Austria  and  Russia  declared  the  naviga- 
tion of  the  rivers  and  canals  of  the  ancient  Kingdom  of  Poland 
to  be  free,  so  as  not  to  be  interdicted  by  any  inhabitant  of  the 
Polish  Provinces  subject  to  either  the  Russian  or  Austrian 
Governments.  There  was  a  similar  treaty  between  Russia  and 
Prussia  touching  the  waterways  of  Poland.  In  1815  and  1821 
treaties  were  entered  into  between  Prussia  and  other  States 
relating  to  the  navigation  of  the  Elbe.  In  1856  the  countries 
45828—13421 


bordering  on  the  Danube  provided  for  freedom  of  navigation 
upon  it.  Similar  treaties  were  entered  into  in  regard  to  the 
Po  between  Austria  and  two  States  of  Italy.  The  river  Douro, 
by  a  treaty  between  Portugal  and  Spain  of  August  31,  1835, 
was  declared  to  be  free.  The  treaty  of  Berlin,  in  1885,  pro- 
claimed the  principle  of  liberty  and  equality  in  the  largest 
degree  for  the  Kongo  and  the  Niger,  express!?  extending  the 
agreement  not  merely  to  rivers,  large  and  small,  but  to  lakes, 
the  canals  connecting  them,  and  still  further,  to  highways  and 
railways  connecting  with  these  waterways. 

The  settled  contention  of  the  United  States  was  again  main- 
tained during  the  administration  of  President  Monroe.  The 
administration  in  1823  began  negotiations  with  Great  Britain 
relative  to  the  right  of  inhabitants  of  the  United  States  to  navi- 
gate tlie  St.  Lawrence.  It  was  stated  that  this  right  had  never 
been  discussed  with  Great  Britain,  but  was  referred  to  as  one 
which  might  be  established  upon  the  "  general  principles  of  the 
law  of  nature."  Mr.  Adams,  the  Secretary  of  State,  in  his  in- 
structions to  our  embassy  at  London,  declared  the  United  States 
bound  to  maintain  for  its  people  in  Michigan,  Illinois,  and  so 
forth,  "the  natural  right  of  communicating  with  the  ocean  by 
the  only  outlet  provided  by  nature  from  the  waters  bordering 
upon  their  shores."  lie  admitted  that  possession  of  both  shores 
and  the'mouth  had  been  held  to  give  the  right  of  obstructing  or 
interdicting  navigation  to  the  people  of  other  nations,  but 
claimed  that  the  river  was  "a  right  of  nature  preceding  it  in 
point  of  time  and  which  the  sovereign  right  of  one  nation  can 
not  annihilate  as  belonging  to  the  people  of  another."  He  cited 
the  acts  of  the  congress  of  Vienna  declaring  navigation  of 
various  rivers  "  free  to  all  nations."  Great  Britain,  however, 
was  willing  to  treat  the  claim  as  a  concession  for  which  an 
equivalent  must  be  obtained. 

Under  the  reciprocal  treaty  of  1854,  terminated  March  17, 
18G6.  the  right  of  reciprocal  navigation  of  the  St.  Lawrence  was 
gran  Led  and  in  return  therefor  Lake  Michigan  was  opened  to 
British  subjects,  together  with  an  engagement  on  the  part  of 
cur  Government  to  urge  upon  the  State  governments  the  use  of 
several  State  canals  on  terms  of  equality.  The  treaty  of  1871 
again  gave  the  right  of  navigating  the  St.  Lawrence  and  the 
Canadian  canals,  and  the  British  subjects  were  given  a  like 
right  to  the  use  of  American  canals.  These  rights  were  con- 
Jinned  in  the  more  recent  treaty  of  1909-10  relating  to  boundary 
waters  between  the  United  States  and  Canada. 

The  United  States  was  the  country  most  insistent  upon  ex- 
emption from  tolls  charged  by  the  Danish  Government  on  ves- 
sels and  cargoes  passing  through  the  sound  and  the  two 
belts  which  form  a  passage  from  the  North  Sea  into  the  Baltic. 
These  tolls  had  been  imposed  on  the  ground  of  immemorial 
usage,  beginning  in  the  fourteenth  century  and  sanctioned  by  a 
long  succession  of  treaties.  The  passage  through  the  strait  was 
aided  by  lights  upon  Danish  territory,  and  the  course  of  vessels 
\v;is  within  cannon  shot  of  land  owned  by  Denmark  on  both 
sides. 

ruder  a  treaty  concluded  in  1820  the  United  States  received 
for  its  vessels  and  their  cargoes  the  mosf-t'avoretl-nation  treat- 
ment under  a  provision  that  our  ships  should  not  pay  higher 
or  other  duties  than  those  paid  by  other  countries;  but  in  the 
45828—13421 


10 

year  1844,  under  the  administration  of  President  Tyler,  Mr. 
Oalhoun,  then  Secretary  of  State,  maintained  that  Denmark 
had  no  right  to  levy  duties  on  vessels  passing  through  the 
sound  from  the  North  Sea  to  the  Baltic,  that  such  a  Charge 
was  contrary  to  the  public  law  of  nations  under  which  the  navi- 
gation of  the  two  seas  connected  by  the  straits  should  be  free 
to  all  nations  and  therefore  the  navigation  of  the  channel  by 
which  they  are  connected  ought  also  to  be  free.  He  maintained 
that  the  foundation  of  the  claim  was  made  in  a  "  remote  and 
barbarous  age,  even  before  the  discovery  of  America."  It  ap- 
pears that  in  a  preceding  period  of  16  years,  1828  to  1843,  both 
inclusive,  the  average  annual  amount  collected  from  American 
shipping  was  $107,467.71,  and  in  addition  there  were  other 
charges  for  "  light  money,"  and  so  forth.  The  amount  of  the  ton- 
nage of  American  ships  going  through  the  sound  during  a  year 
was  about  21,000  tons,  both  going  and  returning.  Negotia- 
tions continued  for  a  considerable  time  and  in  the  year  1857  a. 
treaty  was  framed  under  which  the  navigation  of  the  sound 
and  belts  was  declared  free  to  American  vessels  on  payment  of 
$393,000. 

There  has  been  much  diplomatic  correspondence  in  regard  to 
rivers  in  South  America.  Most  of  the  countries  in  that  conti- 
nent have  shown  a  liberal  policy  in  opening  their  rivers  to  navi- 
gation for  the  merchant  vessels  of  all  nations.  A  decree  to  that 
effect  was  issued  by  the  Argentine  Confederation  on  the  3d  of 
October,  1852,  relating  to  the  Rivers  Parana  and  Uruguay. 
Mr.  Secretary  Clayton,  in  1850,  stated  that  the  Department  of 
State  had  for  some  time  past  in  contemplation  measures  for 
procuring  for  the  citizens  of  the  United  States  the  navigation 
of  the  River  Amazon  and  some  of  its  tributaries. 

Bolivia,  in  1853,  declared  its  navigable  waters  free  to  the 
commerce  and  navigation  of  all  nations  of  the  globe.  Brazil 
for  a  time  opposed,  and  Secretary  Marcy,  under  President 
Pieree's  administration,  sought  the  removal  of  restrictions  upon 
the  navigation  of  the  Amazon.  In  a  letter  to  our  minister  to 
Brazil  he  said : 

Tho  most  important  object  of  your  mission,  an  object  to  which  you 
will  devote  your  early  and  earnest  efforts,  is  to  secure  to  the  citizens 
of  the  United  States  the  free  use  of  the  Amazon.  *  *  *  The  re- 
stricted policy,  which  it  is  understood  Brazil  still  persists  in  maintaining 
in  regard  to  navigable  rivers  pa-ssing  through  her  territory,  is  the  relic 
of  an  age  less  enlightened  than  the  present.  *  *  *  You  are  in- 
structed to  claim  for  our  citizens  the  use  of  this  natural  avenue  of 
trade.  This  right  is  not  derived  from  treaty  stipulations.  It  is  a 
natural  one,  as  much  so  as  that  to  navigate  the  ocean,  the  common 
highway  of  nations. 

A  treaty  was  framed  by  Bolivia  in  1858  in  which  that  State 
declared  the  River  Amazon  and  the  River  L*a  Plata,  with  their 
tributaries,  to  be  highwaj^s  or  channels  opened  by  nature  to  the 
commerce  of  all  nations.  The  Government  of  Brazil,  by  a 
decree  of  December  7,  1886,  opened  the  navigation  of  the 
Amazon  to  the  vessels  of  all  nations  from  September  7,  1867. 
In  1868  the  President  of  Peru  issued  a  decree  declaring  the 
navigation  of  all  the  rivers  of  that  Republic  open  to  merchant 
vessels,  whatever  their  nationality. 

In  the  year  1878  it  was  reported  to  the  State  Department 
that  the  Argentine  Republic  and  Chile  were  proposing  to  ex- 
clude foreign  ships  from  free  passage  through  the  Straits  of 

45828 — 13421 


11 

Magellan.     On  tliis  subject  Mr.  Secretary  Evarts  wrote  to  our 
minister,  Mr.  Osborn,  on  the  18th  of  January,  1879: 

The  (Jovernmenl  of  the  United  States  will  not  tolerate  exclusive 
claim  by  any  nation  whatsoever  to  the  Straits  of  Magellan  and  will 
hold  responsible  any  government  that  undertakes,  no  matter  on  what 
ju-ci ext,  to  lay  any  impost  or  check  oil  United  States  commerce  through 
these  straits. 

Other  conn  tries  protested  also,  and  as  a  result  a  treaty  was 
entered  into  between  the  Argentine  Republic  and  Chile  oil  the 
13th  of  June,  1888,  which  provides  in  article  15  that— 

The  Magellan  Straits  are  neutralized  forever  and  free  navigation  Is 
guaranteed  to  the  flags  of  all  nations.  To  insure  this  neutrality  no 
fortifications  or  military  defenses  shall  be  created  that  could  interfere 
with  I. his  object. 

I  have  not  by  any  means  given  all  the  instances  in  which, 
by  diplomatic  correspondence  or  otherwise,  the  United  States 
lias  insisted  upon  the  free  and  equal  use  of  navigable  channels, 
nor  have  we  refused  to  grant  the  same  privilege  to  other  na- 
tions. In  the  year  1871  equality  was  granted  in  the  Yukon,  the 
Porcupine,  and  the  Stikine  Rivers,  flowing  from  the  British 
possessions  into  Alaska.  The  foregoing,  however,  show  a  uni- 
form policy,  to  which  there  have  been  but  insignificant  excep- 
tions. For  example,  prior  to  the  abolition  of  tolls  on  the  Erie 
Canal  in  the  year  1882  the  State  of  New  York  imposed  higher 
charges  in  the  canal  upon  salt  mined  in  Canada  than  upon  that 
mined  in  the  State  of  New  York.  This  was  a  protective  measure 
of  a  very  drastic  character,  and  was  actuated,  no  doubt,  by 
the  fact  that  the  State  of  New  York  owned  salt  mines  near 
Syracuse.  The  correspondence  of  Mr.  Elaine  in  regard  to  a 
closed  sea  in  the  neighborhood  of  the  Pribilof  Islands  is  another 
apparent  exception. 

The  stand  taken  at  that  time  was  due  to  the  very  exceptional 
conditions  existing. 

In  the  treaty  of  cession  of  Alaska  the  boundary  line  was  a  long 
distance  from  the  shore,  and  for  the  preservation  of  the  seal 
herds  on  the  islands  it  was  thought  essential  to  control  a 
large  section  of  the  sea  outside  of  the  3-mile  limit  because  of 
the  habits  of  the  seal.  Our  contention  in  this  regard  was  sub- 
mitted to  arbitration  and  the  decision  was  unfavorable  to  the 
United  States.  In  1892  Secretary  of  State  Foster  maintained 
that  the  Hudson  River  was  exclusively  a  national  stream,  and 
that  the  natural  right  of  navigation  did  not  exist.  It  must 
be  said  that  this  latter  contention  is  not  altogether  in  line  with 
our  general  policy. 

This  opinion  was  in  response  to  a  claim  on  the  part  of 
Canada  of  the  right  to  send  boats  from  the  Champlain  Canal 
down  the  Hudson  to  its  mouth.  Canada  gave  our  refusal  to 
accept  this  claim  as  a  reason  for  the  discriminatory  regulations 
in  regard  to  the  Welland  Canal  and  other  waters,  which  gave 
rise  to  the  controversy  of  1SSS-1892. 

DECLARATIONS    OF   TUB    UNITED    STATES    MADE    IN    CONTEMPLATION    OP    TUB 
CONSTUUCTION    OF    AX     ISTHMIAN     CANAL. 

It  is  not  necessary  for  us  to  rely  upon  precedents  of  a  general 
nature.  The  most  conclusive  proof  of  the  policy  of  the  United 
States  is  to  be  found  in  the  action  of  this  Senate,  the  House, 
and  of  Presidents  and  Secretaries  of  State  in  relation  to  the 
very  project  under  consideration,  namely,  the  construction  of  an 
45828  13423 


12 

isthmian  canal  connecting  the  Caribbean  Sea  with  the  Pacific 
Ocean.  The  intention  to  make  this  artificial  waterway  open 
to  all  nations  on  terms  of  entire  equality  has  been  manifested 
in  the  most  unequivocal  language,  not  only  by  the  executive  and 
legislative  departments  of  the  Government  but  by  men  of  all 
political  parties,  Democratic,  Whig,  and  Republican,  and  that, 
too,  in  the  life  of  almost  every  administration  which  has  had 
this  subject  under  consideration  during  nearly  90  years.  There 
lias  been  hardly  a  dissenting  note  in  all  this  period  except  in 
the  act  of  1912. 

After  independence  had  been  achieved  by  the  Central  and 
South  American  Republics  it  was  proposed  to  hold  a  conference 
on  the  Isthmus  of  Panama.  Messrs.  Anderson  and  Sergeant 
were  chosen  delegates  to  this  proposed  gathering,  though  they 
were  unable  to  attend.  Instructions  were  framed  for  them  by 
Henry  Clay,  then  Secretary  of  State  under  John  Quincy  Adams. 
Mr.  Clay  was  so  proud  of  these  instructions  that  when,  in  his 
declining  years,  his  friends  proposed  to  prepare  a  medal  in  com- 
memoration of  his  political  career,  he  chose  the  words  "  Panama 
instructions  "  for  one  inscription  upon  this  medal  as  commemo- 
rating one  of  the  most  notable  acts  of  his  whole  life.  The  fol- 
lowing is  the  direction  which  he  gave  to  the  delegates,  Messrs. 
Anderson  and  Sergeant,  in  regard  to  a  proposed  canal : 

A  cut  or  a  canal  for  purposes  of  navigation  somewhere  through  the 
isthmus  that  connects  the  two  Americas  to  unite  the  Pacific  and  Atlan- 
tic Oceans  will  form  a  proper  suhject  of  consideration  at  the  congress. 
That  vast  object,  if  it  should  he  ever  accomplished,  will  he  interesting 
in  a  greater  or  less  degree  io  all  parts  of  the  world.  But  to  this  conti- 
nent will  probably  accrue  the  largest  amount  of  benefit  from  its  execu- 
tion,, and  to  Colombia,  Mexico,  the  Central  Republics,  Peru,  and  the 
United  States  more  than  to  any  other  of  the  American  nations.  What 
is  to  redound  to  the  advantage  of  all  America  should  be  effected  by 
common  means  and  united  exertions  and  should  not  be  left  to  the  sepa- 
rate and  unassisted  efforts  of  any  one  power.  *  *  *  If  tJie  work 
should  ever  be  executed  so  as  to  a (1m it  of  tire  passage  of  sea  i:esscls 
from  ocean  io  ocean,  the  benefits  of  it  oit</ht  not  to  lie  exclusively  appro- 
priated to  any  one  nation,  but  should  be  extended  to  all  parts  of  the 
globe  upon  the  payment  of  a  just  compensation  or  reasonable  tolls. 

It  is  well  to  notice  in  this  connection  that  the  fear  the 
Monroe  doctrine  may  be  interfered  with  by  granting  equal 
rights  as  to  tolls  on  ships  passing  through  the  Panama  Canal 
must  be  without  foundation.  John  Quincy  Adams,  as  Secre- 
tary of  State  in  the  Cabinet  of  President  Monroe,  had  been 
most  prominent  in  formulating  the  principles  which  consti- 
tuted the  so-called  Monroe  doctrine.  Barely  four  years  later, 
after  he  had  become  President,  his  Secretary  of  State,  un- 
doubtedly with  his  approval,  wrote  instructions  to  the  effect 
that  the  benefits  of  the  proposed  canal  ought  not  to  be  exclu- 
sively appropriated  to  any  one  nation,  but  should  be  extended 
to  all  parts  of  jthe  globe. 

In  the  year  1835,  during  the  administration  of  President 
Jackson,  the  Senate  of  the  United  States  unanimously  adopted 
a  resolution,  as  follows : 

Resolved,  That  the  President  of  the  United  States  be  respectfully 
requested  to  consider  the  expediency  of  opening  negotiations  with  the 
Governments  of  other  nations,  and  particularly  with  the  Governments 
of  Central  America  and  New  Granada,  for  the  purpose  of  effectually 
protecting,  by  suitable  treaty  stipulations  with  them,  such  individuals 
or  companies  as  may  undertake  to  open  a  communication  between  the 
Atlantic  and  Pacific  Oceans  by  the  construction  of  a  ship  canal 
across  the  isthmus  which  connects  North  and  South  America,  and  of 
securing  forever  by  such  stipulations  the  free  and  equal  right  of  navi- 
4.r>S28 — 13421 


13 


f>iic7i  cannl  in  nil  aucli  nations  on  tho  payment  of  such  rensnn- 
ablc  tolls  as  may  be  f'staMished  to  compensate  tli"  capitalists  who 
may  engage  In  such  undertaking  and  complete  the  work. 

Mr.  Charles  Bicldle  was  appointed  in  pursuance  of  this  reso- 
lution by  President  Jackson  and  obtained  from  the  Government 
of  New  Granada  an  exclusive  grant  to  the  citizens  of  the  United 
States  to  construct  a  canal.  Mr.  Biddle's  action  was  expressly 
disavowed. 

During  the  administration  of  President  Van  Buren,  in  a  re- 
port to  the  House  of  Representatives  March  2,  1839,  Mr.  Mercer, 
of  Virginia,  from  the  Committee  on  Roads  and  Canals,  stated  : 

The  policy  is  not  less  apparent  which  would  prompt  the  United 
States  to  cooperate  in  this  enterprise,  liberally  and  efficiently,  before 
other  disposition  may  he  awakened  in  the  particular  State  within  whose 
territory  it  may  be  ceded  or  other  nations  shall  seek  by  negotiations 
1o  <>n/ross  a  commerce  which  is  now  anil  should  ever  continue  open 
to  all. 

In  the  same  year  the  House  of  Representatives  by  unanimous 
vote  adopted  a  resolution  much  the  same  as  that  of  the  Senate 
in  1835,  requesting  the  President— 

to  consider  the  expediency  of  opening  or  continuing  negotiations 
with  the  Governments  of  other  nations,  and  particularly  with  those 
the  territorial  jurisdiction  of  which  comprehends  the  Isthmus  of 
Panama,  and  to  which  the  United  States  have  accredited  ministers  or 
agents,  for  the  purpose  of  ascertaining  the  practicability  of  effecting 
a  communication  between  the  Atlantic  and  Pacific  Oceans  by  the  con- 
struction of  a  ship  canal  across  the  Isthmus  and  of  securing  forever 
~by  suitable  treaty  stipulations  the  free  and  equal  right  of  navigating 
such  canal  Ity  all  nations. 

In  a  letter  to  Mr.  Buchanan,  Secretary  of  State,  on  Decem- 
ber 17,  1845,  the  commissioner  accredited  to  examine  a  canal 
route  said : 

Like  all  other  international  questions,  it  can  only  be  satisfactorily 
adjusted  by  concert  with  the  other  maritime  powers  which  have  simi- 
lar interests,  more  or  less  important,  and  whose  assent  is  necessary 
to  place  the  proposed  passage  under  the  protection  and  guaranty  of 
the  public  law.  recognized  by  the  whole  world. 

On  the  conclusion  of  the  treaty  with  New  Granada  in  1846 
President  Polk  submitted  it  to  the  Senate  with  a  message,  in 
which  he  said : 

In  entering  into  the  mutual  guaranties  proposed  by  the  thirty-fifth 
article  neither  the  Government  of  New  Granada  nor  that  of  the  United 
States  has  a  narrow  or  exclusive  view.  The  ultimate  object,  as  pre- 
sented by  the  Senate  of  the  United  States  in  their  resolution  (Mar.  3, 
1835),  to  which  I  have  already  referred,  is  to  secure  to  all  nations  the 
free  and  equal  right  of  passage  over  the  Isthmus. 

Iii  the  meantime  conditions  had  arisen  which  had  an  impor- 
tant bearing  upon  the  question  of  an  isthmian  canal.  In  the 
year  1S4G  our  forces  had  taken  possession  of  California,  and  it 
was  evident  a  great  area  fronting  on  the  Pacific  coast  would  be 
annexed  to  the  United  States.  Communication  with  California 
was  regarded  as  a  matter  of  immediate  and  pressing  importance, 
especially  as  the  route  overland  was  exceedingly  difficult.  The 
desire  for  a  canal  was  naturally  very  much  intensified.  The 
treaty  with  New  Granada,  which  provided  for  a  route  across 
the  Isthmus,  was  concluded  in  December,  184G,  but  was  not 
ratified  by  the  Senate  until  June  3,  1848.  In  the  meantime  the 
treaty  of  Guadalupe-Hidalgo  had  been  ratified,  and  California 
was  an  assured  portion  of  the  United  States. 

In  the  consideration  of  routes  the  Nicaragua n  route  had 
gained  in  favor  in  comparison  with  the  route  across  the  Isthmus 
of  1 'ana ma.  The  situation  which  confronted  ns  was  that  Kng- 
40828—13421 


14: 

land  had  possession  of  that  part  of  the  coast  of  Nicaragua  and 
Costa  Rica  in  which  lay  the  Atlantic  terminus  of  the  proposed 
route  through  Nicaragua ;  also  Great  Britain  maintained  a 
naval  squadron  in  the  West  Indies,  and  then,  as  now,  possessed 
important  islands.  All  these  circumstances  gave  her  a  great 
advantage  in  any  plan  for  a  route  between  the  two  oceans. 
Thus  it  was  not  Great  Britain  but  the  United  States  which  at 
that  time  was  endeavoring  to  secure  absolute  neutrality  and 
eqtiality  for  the  isthmian  route. 

From  the  beginning  our  traditional  policy  had  favored  no 
discrimination  in  the  enjoyment  of  straits,  canals,  and  rivers, 
and  in  this  particular  instance  our  interests  reenforced  that 
traditional  policy.  Negotiations  from  this  time  on  can  not  be 
understood  without  taking  into  account  the  desire  to  obtain 
under  manifest  disadvantages  equality  of  treatment  in  any  route 
across  the  Isthmus. 

In  the  next  administration,  that  of  President  Taylor,  our 
Secretary  of  State,  Mr.  Clayton,  opened  negotiations  with  Great 
Britain  with  a  view  to  adjusting  the  differences  between  the 
two  countries,  Mr.  Rives,  our  minister  to  France,  being  ap- 
pointed to  submit  the  views  of  the  United  States  to  Lord 
Palmerston.  Mr.  Rives,  in  his  letter  to  Secretary  Clayton  of 
September  25,  1849,  describes  his  interview  with  Lord  Palmers- 
ton  and  states  that  in  pursuance  of  his  instructions  he  had  said 
to  him : 

That  the  United  States,  moreover,  as  one  of  the  principal  commercial 
powers  of  the  world,  and  the  one  nearest  to  the  scene  of  the  proposed 
communication,  and  holding,  besides,  a  large  domain  on  the  western 
coast  of  America,  had  a  special,  deep,  and  national  interest  in  the  free 
and  unobstructed  use,  in  common  with  other  powers,  of  any  channel  of 
intercourse  which  might  be  opened  from  the  one  sea  to  the  other ; 

*  that  the  United  States  sought  no  exclusive  privilege  or  prefer- 
ential right  of  any  kind  in  rcf/ard  to  tlie  proposed  communication,  and 
their  sincere  wish,  if  it  should  ~be  -found  practicable,  was  to  see  it  dedi- 
cated to  the  common  iise  of  all  nation*  on  the  most  liberal  terms  and 
a  footing  of  perfect  equality  for  all;     *     *     *     that  the  United  States 
would  not,  if  they  could,  obtain  any  exclusive  right  or  privilege  in  a 
great  highway  which  naturally  belonged  to  all  mankind,     *     *     * 

President  Taylor  in  his  first  annual  message  to  Congress,  De- 
cember 4,  1849,  said: 

*  *  *  All  States  entering  into  such  a  treaty  will  enjoy  the  right 
of  passage  through  the  canal  on  payment  of  the  same  tolls.  The  work, 
if  constructed  under  these  guaranties,  will  become  a  bond  of  peace  in- 
stead of  a  subject  of  contention  and  strife  between  the  nations  of  the 
earth.  Should  the  great  maritime  States  of  Europe  consent  to  this 
arrangement  (and  we  have  no  reason  to  suppose  that  a  proposition  so 
fair  and  honorable  will  be  opposed  by  any),  tho  energies  of  their  people 
and  ours  will  cooperate  in  promoting  the  success  of  the  enterprise. 

*  Should  such   a  work  be   constructed   under   the   common   pro- 
tection of  all  nations,  for  equal  benefit  to  all,   it  would  be  neither  just 
nor  expedient  that  any  great  maritime  State  should  command  the  com- 
munication.    The    territory    through    which    the    canal    may    be   opened 
ought    to   be   freed   from    the   claims   of   any   foreign    power.     No    such 
power  should  occupy  a  position  that  would  enable  it  hereafter  to  exer- 
cise so  controlling  an  influence  over  the  commerce  of  the  world  or  to 
obstruct  a  highway  ivhich  ought  to  be  dedicated  to  the  common  use  of 
mankind. 

Iii  a  letter  to  Lord  Napier,  the  British  minister,  September 
10,  1857,  Mr.  Lewis  Cass,  Secretary  of  State  under  President 
Buchanan,  said: 

While  the  rights  of  sovereignty  of  the  local  governments  must  al- 
ways be  respected,  other  rights  also  have  arisen  in  the  progress  of 
events  involving  interests  of  great  magnitude  to  the  commercial  world 
and  demanding  its  careful  attention  and,  if  need  be,  its  efficient  pro- 
45828 — 13421 


15 

tection.  In  view  of  these  interests  .and  after  having  invited  capital 
;iiui  enterprise  from  other  countries  to  aid  in  the  opening  of  these; 
great  highways  of  nations  under  pledges  of  free  transit  to  all  desiring 
it,  it  can  not  be  permitted  that  these  Governments  sJioitld  exercise  over 
tliem  an  arbitrarily  and  unlimited  control  or  close  them  or  embarrass 
Ilicin  without  reference  to  tlic  wants  of  commerce  or  of  the  intercourse 
of  the  world.  Equally  disastrous  would  it  be  to  leave  them  at  the 
mercy  of  every  nation  which  in  time  of  war  might  find  it  advantageous 
for  hostile  purposes  to  take  possession  of  them  and  either  restrain  their 
use  or  suspend  it  altogether. 

The  President  hopes,  by  the  general  consent  of  the  maritime  powers, 
all  such  difficulties  may  be  prevented  and  the  interoceanic  lines,  with 
the  harbors  of  immediate  approach  to  them,  may  be  secured  beyond 
interruption  to  the  great  purposes  for  which  they  Were  established. 

Ill  18G2  there  was  a  disturbance  upon  the  Isthmus  of  Panama 
which  we  were  called  upon  to  pacify.  The  note  of  Mr.  Seward, 
then  Secretary  of  State  under  President  Lincoln,  to  Mr.  Adams 
is  particularly  significant,  because  by  the  treaty  of  1840-1 S4S 
with  New  Granada  w3  had  absolutely  equal  privileges  with 
that  country  in  traffic  across  the  Isthmus.  Further,  an  ob- 
ligation rested  upon  us  by  the  same  treaty,  article  35,  to  main- 
tain order  there,  yet  Mr.  Seward  claimed  no  special  privileges 
for  the  United  States.  In  his  note  to  Mr.  Adams,  our  minister 
to  London,  he  said,  in  speaking  of  the  disturbances  which  had 
occurred : 

This  Government  has  no  interest  in  the  matter  different  from  that 
of  other  maritime  powers.  It  is  willing  to  interpose  its  aid  in  execu- 
tion of  its  treaty  and  further  equal  Leueiit  of  all  nations. 

And  again,  during  the  term  of  President  Johnson,  under  date 
of  January  18,  1801),  Secretary  Seward  expressed  himself  in  the 
same  manner. 

In  the  administration  of  President  Grant,  Secretary  Fish  wrote : 

*  *     *     A   Darien    Canal   should    not   he   regarded    as   hostile   to   a 
Suez  Canal  ;   they  will  not  be  so  much  rivals  as  joint  contributors  to 
the  increase  of  the  commerce  of  the  world,  and  thus  mutually  advance 
each  other's  interests.     *     *     *     We  shall     *     "     *     he  glad  of  any  move- 
ment which  shall  result  in  the  early  decision  of  the  question  of  the  most 
practicable  route  and   the  early   commencement   and  speedy  completion 
of   an    interoceanic    communication    which    shall   he    guaranteed   in    its 
perpetual  neutralization  and  dedication  to  the  commerce  of  all  nations, 
without  advantages   to   one   over   another   of   those  who  guarantee   its 
assured  neutrality.     *     *     * 

*  *     *     the  benefit  of  neutral  waters  at  the  ends  thereof  for  all 
classes  of  vessels  entitled  to  fly  their  respective  flags,  with  the  cargoes 
on  board,  on  equal  terms  in  every  respect  as  between  each  other. 

About  the  year  1880  the  opinion  became  prevalent  that  what- 
ever canal  might  be  constructed  should  be  under  the  exclusive 
supervision  and  protection  of  our  own  country.  This  view  was 
maintained  by  President  Hayes.  An  attempt  was  made  soon 
after  to  repudiate  the  Clayton-Btilwer  treaty.  Notwithstanding 
this  change  of  opinion,  equality  among  nations  was  promised  by, 
us  as  distinctly  as  theretofore. 

Secretary  Blaine,  Secretary  of  State  under  the  administra- 
tion of  President  Garfield,  in  1881,  in  two  letters  gave  the  fol- 
lowing instructions  to  Mr.  Lowell,  our  minister  to  England  : 

First,  that  of  June  24,  1881: 

"Nor,  in  time  of  peace,  docs  the  United  States  seek  to  Uavc  anil  ex- 
rlnxire;  privileges  accorded  to  American  ships  in  respect  to  precedence 
or  tolls,  throuyh  an  interoceanic  canal  any  more  than  it  Jias  sou«)ht  like 
j>riril((/es  for  American  yuuds  in  transit  over  the  Panama  Railway. 
under  the  exclusive  control  of  an  American  corporation.  The  extent  of 
the  privileges  of  American  citizens  and  ships  is  measurable  under  the 
treaty  of  18-10  by  those  of  Colombian  eitixens  and  ships.  It  would 
be  ottr  earnest  desire  and  expectation  to  sec  the  world's  peaceful  com- 
merce ciijo;/  tin:  *amc  just,  liberal,  and  rational  treatment. 
45828—13421 


16 

It  should  be  noted  that  at  that  time  the  Panama  Railway,  an 
American  corporation,  was  available  for  the  commerce  of  all 
nations,  without  any  discrimination  whatever.  Mr.  Elaine  pro- 
poses that  the  policy  of  the  United  States  in  regard  to  tolls  shall 
be  the  same  as  that  of  the  Panama  Railway,  which  charged 
equal  rates  for  all. 

Second,  that  of  November  19,  1SS1  : 

In  assuming  as  a  necessity  the  political  control  of  whatever  canal 
or  canals  may  be  constructed  across  the  Isthmus,  the  United  States 
will  act  in  an  entire  harmony  with  the  Governments  within  whose 
territory  the  canals  should  be  located.  Between  the  United  States' 
and  the  other  American  Republics  there  can  be  no  hostility,  no  jealousy, 
no  rivalry,  no  distrust.  This  Government  entertains  no  design  in  con- 
nection with  this  project  for  its  advantage  which  is  not  also  for  the 
equal  or  greater  advantage  of  the  country  to  be  directly  and  immedi- 
ately affected  ;  nor  does  the  United  States  seek  any  exclusive  or  narrow 
commercial  advantage.  /*  frankly  agrees,  and  will  by  public  proclama- 
tion declare  at  the  proper  time,  in  conjunction  with  the  Republic  on 
whose  soil  the  canal  may  be  located,  that  the  same  rights  and  privileges, 
the  same  tolls  and  obligations  for  the  use  of  the  eanal  sliall  apply 
icitJi  absolute  impartiality  to  the  merchant  marine  of  every  nation  on 
the  globe  and  equally,  in  the  time  of  peace,  the  harmless  use  'of  the  canal 
shall  be  freely  granted  to  the  war  vessels  of  other  nations, 

Lord  Grauville  replied  as  follows: 

*  *     *     such    communication    concerned    not    merely    the    United 
States  or  the  American  Continent,  but,  as  was  recognized  by  article  0 
of  the  Clayton-Bulwer  treaty,  the  Ayhole  civilized  v.'orld,   and   that  she 
would  not  oppose  or  decline  any  discussion   for   the  purpose   of  secur- 
ing   on    a    general    international    basis   its    universal    and    unrestricted 
use.     *     *     * 

President  Cleveland,  in  his  first  annual  message  to  Congress, 
said : 

*  *     *     "Whatever  liiyhwaij   may  be  constructed  across   the  barrier 
dividing  the  two  greatest  maritime  areas  of  the  world  must  be  for  the 
world's  benefit — a  Inist  for  mankind,  to  be  removed  from  the  chance  of 
domination  by  any  single  power,   nor  become  a   point  of  invitation  for 
hostilities    or    a    prize   for    warlike    ambition.      *      *      *     These    sugges- 
tions may  serve  to  emphasize  what  I  have  already  said  on  the  score  of 
the  necessity  of  a  neutralization  of  any  interoceanic  transit ;  and  this 
can  only  be  accomplished  by  making  the  uses  of  the  route  open  to  all 
nations  and  subject  to  the  ambitions  and  warlike  necessities  of  none. 

In  the  second  administration  of  President  Cleveland  Secretary 
of  State  Olney  made  the  following  memorandum  : 

*  *     *     That  the  interoceanic  routes  there  specified  should,   under 
the  sovereignty  of  the  States  traversed  by  them,  be  neutral  and  free  to 
all  nations  alike.     *     *     * 

Then,  in  speaking  of  the  Clayton-Bulwer  treaty,  he  said : 

*  *      *     Under  the  circumstances,  upon  every  principle  which   gov- 
erns the   relations  to  each   other,  either  by  nations  or  of   individuals, 
the  United  States  is  completely  estopped  from  dens'ing  that  the  treaty 
is  in  full  force  and  vigor. 

It  may  be  said  that  most  of  the  above  declarations  were  made 
when  it  was  anticipated  that  the  canal  would  be  built  by  pri- 
vate capital.  While  no  possible  reason  can  exist  for  a  change 
in  the  principles  applicable  in  case  the  canal  should  be  built  by 
our  Government,  the  following  declarations  were  made  after  the 
time  when  it  was  contemplated  that  the  United  States  should 
build  and  operate  the  canal. 

There  was  no  more  decisive  note  in  favor  of  neutrality  and 

equality  than  that  uttered  by  Senator  Davis,  then  chairman  of 

the  Committee  on   Foreign  Relations,  and  announced  after  it 

was  decided  that  the  building  and  operation  of  the  canal  should 

45828—13421 


IT 

bo  a    n.-HI'.nal   enlerjir'  whole  of  his   report  should  be 

read,  but  the  following  arc  ,  i'oitions: 

In    the   origin   of  our  .!c   and 

our  :  rmies,    mails,    and    <  i  he    canal, 

WC    •  •  1     1;>    the    • 

'•;ilil.v  and  the  .  !    of  the  canal   a  a  to 

universal    use,   llu1  f  •   incurporaied   in    th->   cinytou- 

Knhver    i:  :i    by 

it  Britain.     In  i> 

intimated   an   objection    i  ttouot    <•!'    the    features   of 

mv;trai;ty.  its  ('-pY^l   ;md  5^>:>aN^l   u.^'bv  all  other  nations.      *      *       :      No 

fican    slaic-'i'ian,    speakintr    with    oflicial    a  I-'ity, 

;'nitfjd    Hi. 

thi.--,  canal  ]<)!•  the  cxrlusiv,;  b:-:ielit  of  our  Government  or  people.     They 

hav   all,   with   one   accord,   declared   that  the  itral 

Bd    in    time  :d    always    <'i":'i    on    ien.is   of    impariiMl    equity 

•  of  (he  world.     *     *     *     Ti;e  i  -  |  can 

not  take  an  attitude  of  opposition  to  the  principles  of  the  .srre.it  act  of 

her   lii.'.    INNS,    without    dis.'.-redHin.L;-   the    ollicial    •  '    onv 

;;t  for  HO  years  on  the  neutrality  of  an   Isthmian   Canal,  nnd 

use   by    al!    nations    without   di  '  *n.      To   set   up 

Isk   motive  of  gain   by   establishing   a   monopoly   of   a   h'i^hvvay    that 

re    its    income   from    the    ])iit.rona^e    of   all 

would    be  of    the    United    States    if    we    owii  a  try 

;;<h  which  the  canal  is  to  be  built.     *     *     *     The  Suez  Canal  ruak 

:ti.-m    in    its   tolls    in    favor   of   its   K;  rs ;    and,    ta1 

its   profits,    or   the    half   of  them,    as   our   hnsi  Nation,    we   will 

never   find    it   necessary    to   differentiate   our    rates    of   toJl    in   far 
our  own  people  in  order  to  secure  a  very  great  profit  on  the  investment. 

President  Roosevelt,  in  submitting  tlie  second  Hay-Pauncefote 

tro:ily,  ;;iud  : 

It    sp( -cificully    provides    that    the    United    States    alonr*    sliall    do    1J;n 

work    of    luiildinff    and    assume    the  •  iVijuartiinj,'    the 

i    and    :;)i;il!    regulate   its    neutral    UKO   i>y    all   nations   on    tr-rms    of 

>:t    tlie    guaranty    of    interference  of   any    outside   nation 

from  any  quarter.      *      * 

Again,  he  says,  on  January  4,  1004,  in  a  ppecinl  mossnge: 

*  *      *      Under    the    Tiay-raiiivofote    treaty    it    was    explicitly    pro- 
vided   that    the    I'niled    Sl.iies    should    control,    police,    and    protect    the 
canal  which  was  to  be  built,  Itccjtiuy  it  {.pen  for  i:  <<f  all  na- 
H'.v                            n8.      The   United    States  tlius   a-                   e    position 
of  guarantor  of  the  M                  of  its  peaceful  use  by  nil  the  world. 

In  a  note  by  Secretary  Hay  on  the  following  d.iy.  lie  - 

*  *      *     The  Clayton-I'ulwcr   treaty   was   conceived    to   form   an   ob- 
sfa-'-le,  and  the  British  GioverjMaeflt  therefore  nsi'eod  to  abrogate  ii. 
Ui:i:  only  prorai^iu.e  in   return  lo   protd't   the  canal  and  keep 
it  ci                      .al    temiB   to   all   nations,   in   accordance   icltJi    our   :, 
tional  pvli 

Aside  from  corresiioiideiice  and  declarations  rclr.tins  to  the 
proposed  Isilnniaii  Canal,  two  negotiations  remain  very  no.-irly 
COBtenjporameoT3«  with  the  date  of  the  Hay-Panneefote  treaty, 
both  of  \vliich  are  in  entire  :  •  >  with  our  sell  let!  national 

policy,  but  which  in  their  bearing  upon  the  interpretation  of  th<> 
Hay-Panncefote  ti-caty  far  outweigh  :<il  liii1  pnveding.  not  (>nly 
because  of  the  similarity  in  tlie  quesiions  involvod  bill  Jje-'-iuso 
of  the  furl  her   f.-ict  that   they  are   so  nearly   conteiujwran-" 
wilh  tlie  negotiation  of  the  i  ining  to  them 

must  have  been  clearly  in  mind  when  tlie  treaty  w*B  framed. 
They  are  : 

First,  (hn  tioofl  in  relation  to  the  so-cnllod  <M)e;: 

in    (.'hina    in   "JS!5i>   ;n;il    si'.fveeiling   years.     (",r 
many.   Fraiu-o.    ftOBKln,   and  .7;i|:aii   were  tlie  couni;  -..led 

as  ])ossossing,  thougli  in  unequal  degri'es.  an  advani.igiMiis  ;>;>M- 
tion  in  China.     (Jreat  r.ritaSn  1 :.  ;!>.<> 

island  of  n.mgkong  in  th"  y»-ar  1SJ1  and  had  aripiired  a  ]>enin- 
BtilM,  known  as  Kowloun,  opposite  the  island  ol  -ug;  also 

45828—13421 2 


18 

a  99-year  lease  of  a  tract  of  territory  on  ilie  mainland  in  the 
Province  of  Kwaiigtiing,  in  the  extreme  trntheni  part  of  China. 
This  was  acquired  in  1898.  The  total  area  of  this  last  conces- 
sion was  400  square  miles,  with  a  population  in  1911  of  306,145. 
Also  in  1898  the  port  of  Weihaiwei  was  leased  for  so  long  a 
period  as  Port  Arthur  should  remain  in  the  hands  of  Russia, 
the  object  of  which  was  to  provide  Great  Britain  with  a  suitable 
naval  harbor  in  northern  China  and  for  the  better  protection  of 
British  coimumerce  in  the  neighboring  sea^.  The  area  of  the 
territory  under  this  lease  was  285  square  miles,  with  a  popula- 
tion of  150,000.  The  lease  was  extended  under  an  agreement 
in  which  provision  is  made  that  it  (Weihaiwei)  shall  remain 
in  the  occupation  of  the  British  "  so  long  as  Port  Arthur  re- 
mained in  the  hands  of  any  foreign  power  " — that  is,  any  power 
other  than  China.  Port  Arthur  now  belongs  to  Japan. 

Germany  had  a  99-year  lease,  granted  in  1898,  of  KiaorChau, 
including  the  bay  of  the  same  name,  its  islands,  and  the  north 
and  south  tongues  of  land  at  the  mouth  of  the  harbor.  The 
extent  of  this  is  193  square  miles.  In  view  of  the  possessions 
held,  Great  Britain  has  a  sphere  of  influence  in  the  Yangtze 
Valley  and  Germany  a  similar  area  of  about  2,750  miles,  but 
now  extended  to  the  whole  of  th-  Province  of  Shantung. 

France  at  that  time  had,  under  a  lease  for  99  years,  given  in 
1898,  the  port  of  Kuang-chou-wan  to  establish  a  naval  station 
with  coaling  depot,  together  with  adjoining  islands  and  terri- 
tory in  the  Province  of  Kwangtuug  in  the  extreme  southern 
part  of  China,  some  300  miles  west  of  the  British  island  of 
Hongkong.  The  area  included  in  this  is  325  square  miles,  with 
a  population  of  190,000.  The  sphere  of  influence  has  extended 
over  the  Yunnan  Province. 

Russia  had  a  25-year  lease,  granted  in  1898,  of  Liao-Tung 
Peninsula,  including  Port  Arthur,  Ta-lien-wan,  and  the  adjacent 
waters.  The  area  of  the  laud  included  in  this  lease  was  about 
2,000  square  miles,  in  which  Port  Arthur  and  Ta-lien-wan  were 
the  principal  ports.  This  sphere  of  influence  extended  into 
South  Manchuria ;  Russia  also  had  a  lease  of  land  necessary  for 
the  construction  0f  a  railway  508  miles  long,  leading  from  Port 
Arthur  to  Kwanchengtsee,  and  another  road  150  miles  long,  lead- 
ing from  Antung  on  the  Yalu  River,  which  is  the  boundary  be- 
tween Korea  and  Sheugking  Province,  to  the  city  of  Mukden. 

Each  of  these  countries  had  also  garrisons  and  a  naval  force 
in  their  respective  spheres  of  influence.  It  was  apparent  that 
these  possessions  gave- them  a  very  substantial  advantage  in  the 
trade  of  China,  and  it  was  the  aim  of  President  McKiuley  and 
Secretary  Hay  to  obtain  for  our  own  citizens  equal  rights  in  all 
the  Chinese  Empire.  With  that  purpose  in  view  assurances  had 
been  given  to  our  ambassador  by  the  Russian  minister  of  foreign 
affairs  that  American  interests  should  in  no  way  be  prejudiced 
by  Russian  occupation  and  influence,  and  it  was  not  the  desire 
of  Russia  to  interfere  with  the  trade  of  other  nations.  There 
was  an  imperial  decree  of  July  30,  1899,  creating  the  free  port 
of  Dalny,  near  Ta-lien-wan  Bay,  and  establishing  free  trade  for 
the  adjacent  territory.  In  a  letter  to  our  ambassador  at  St. 
Petersburg,  Mr.  Hay  said : 

However  gratifying  and  reassuring  such  assurances  may  be  in  regard 
to  the  territory  actually  occupied  and  administered  it  can  not  hut  be 
admitted  that  a  further,  clearer,  and  more  formal  definition  of  the  con- 
ditions which  are  henceforth  to  hold  within  the  so-called  Russian 
45828—13421 


19 

"sphere  of -interest"  In  China  as  regards  the  commercial  rights  therein 
of  our  citizens  is  much  dcsirod  by  tho  busineM  world  of  Die  United 
States,  inasmuch  as  such  a  declaration  would  relieve  it  from  the  appre- 
hensions which  have  exercised  a  disturbing  influence  during  the  last  four 
years  on  its  operations  in  China. 

Mi\  Hay  accordingly  laid  down  certain  principles  which  he  de- 
sired should  be  formally  declared  by  the  Russian  Umpire  and 
by  all  the  great  powers  interested  in  China.  Of  these  principles 
he  said  they  "will  be  eminently  beneficial  to  the  commercial 
interests  of  the  whole  world  "  : 

First.  The  recognition  that  no  power  will  in  any  way  interfere  with 
any  treaty  port  or  any  vested  interest  within  any  leased  territory  or 
within  any  so-called  "  sphere  of  interest  "  it  may  have  in  China. 

Second.  That  the  Chinese  treaty  tariff  of  the  time  being  shall  apply 
to  all  merchandise  landed  or  shipped  to  all  such  ports  as  are  within 
said  "sphere  of  interest"  (unless  they  be  "  free  ports  "),  no  matter  to 
what  nationality  it  may  belong,  and  that  duties  so  leviable  shall  be 
collected  by  the  Chinese  Government. 

Third.  That  it  will  levy  no  higher  harbor  dues  on  vessels  of  another 
nationality  frequenting  any  port  in  such  "  sphere  "  than  ?hall  !>•••  levied 
on  vessels  of  its  own  nationality,  and  no  higher  railroad  chargf-.s  over 
];n>:-;  built,  controlled,  or  operated  within  its  "  sphere  "  on  merchandise 
belonging  to  citizens  cr  subjects  of  other  nationalities  transported 
through  such  "  sphere  "  than  shall  be  levied  on  similar  merchandise 
belonging  to  its  own  nationals  transported  over  equal  distances. 

Special  attention  is  called  to  the  third  of  the  principles,  tiie 
recognition  of  which  \vns  requested.  It  included  a  demand 
that  no  higher  railroad  charges  over  lines  built,  controlled,  or 
operated  within  its  sphere  on  merchandise  belonging  to  the  citi- 
•  or  subjects  of  other  nationalities  should  be  levied  than  on 
similar  merchandise  belonging  to  its  own  nationals. 

An  identical  note  containing  the  request  for  recognition  of 
the  three  principles  was  sent  to  France,  Germany,  and  Russia, 
on  the  same  date,  September  G,  1899.  This  same  note  wj;3  trans- 
mitted to  Great  Britain  on  September  22,  1899,  from  the  London 
embassy;  to  Japan,  November  13,  1899;  and  to  Italy,  November 
17,  1899.  The  reply  of  Russia,  dated  December  30,  1899,  stated 
that  Russia  had  already  declared  Ta-lien-wan  a  free  port,  thus 
demonstrating  its  friendly  intention  to  follow  the  "  open-door  " 
policy  as  to  territory  lying  in  tl:3  so-called  "  sphere  of  influence,'' 
and  that  Russia  intended  to  claim  no  privileges  to  the  exclusion 
of  foreigners,  though  this  assurance  was  given  on  condition  that 
a  similar  declaration  should  be  made  by  the  other  powers. 
Before  the  close  of  the  year  the  other  powers  made  a  similar 
declaration,  and  under  date  of  March  20,  1900,  Secretary  Hay 
sent  instructions  to  all  the  Governments  concerned,  stating  that 
all  the  powers  had  given  their  acceptance  and  that  the  Govern- 
ment of  the  United  States  would  consider  such  acceptance  final 
and  binding. 

We  thus  demanded  equal  use  of  the  ports  controlled  by  these 
various  nations,  equal  privileges  in  trade,  and,  what  is  most 
significant  of  all,  equal  railroad  rates  upon  railways  constructed 
by  Russia  at  great  expense  and  extending  into  the  interior 
through  Chinese  territory  to  a  connection  with  railways  within 
her  own  domains. 

The  insistence  upon  equal  opportunity  for  American  enterprise 
in  China  was  carried  so  far  that  in  190U  Secretary  Hay  stato-l 
that,  an  agreement  by  \vhi.-h  China  "coiled  to  any  corporation 
or  company"  the  exclusive  right  to  open  mines,  establish  rail- 
roads, or  in  any  o!her  way  industrially  develop  Manchuria,  can 
but  be  viewed  with  the  gravest  concern  by  the  Government  of 
45828—13421 


20 

1he  United  States.  Tie  alleged  this  was  so,  because  such  a 
monopoly  was  a  distinct  breach  of  the  stipulations  of  the 
treaties  concluded  between  China  and  foreign  powers,  and 
thereby  seriously  affected  the  rights  of  American  citizens.  He 
concluded  by  saying: 

The  inevitable  result  must  be  the  complete  wreck  of  the  policy  of 
absolute  equality  of  treatment  of  all  nations  in  regard  to  trade, 
navigation,  and  'commerce  within  the  confines  of  the  Empire. 

The  following  year.  1903,  Mr.  Hay  entered  a  protest  against 
the  demand  of  the  Russian  Government  that  no  foreigners, 
except  Russians,  should  be  employed  in  the  public  service. 

It  is  often  said  that  we  made  a  bad  bargain  when  the  Hay- 
Pauncefote  treaty  was  framed.  This  statement  has  been 
repeatedly  made.  The  conclusive  answer  to  that  is  contained 
in  a  very  few  words  in  a  note  by  Secretary  Hay  of  January  5, 
1904,  to  which  reference  has  already  been  made: 

The  Clay  ton-Bui  wer  treaty  was  conceived  to  form  an  obstacle — that 
is,  to  the  construction  of  an  Isthmian  Canal  by  us — and  the  British 
Government  therefore  agreed  to  abrogate  it.  The  United  States  only 
promised  in  ret  lira  to  protect  the  canal  and  keep  it  open  on  equal  terms 
to  all  nations,  in  accordance  u'Uh  our  traditional  policy. 

Not  only  was  the  treaty  in  accordance  with  our  traditional 
policy,  but  negotiations  had  been  initiated  contemporaneously 
with  the  negotiations  with  the  various  nations  in  China  for  an 
"  open  door,"  and  it  would  have  been  the  height  of  inconsistency 
to  have  made  the  demand  for  equality  of  treatment  in  China 
and  to  have  denied  it  in  a  treaty  relating  to  an  Isthmian  canal. 

Our  record  was  so  uniform  and  unbroken  that  we  could  have 
taken  no  other  ground.  The  attempt  by  John  Adams  and  Frank- 
lin and  Jay  in  the  years  'J782  and  1783  pointed  a  new  way  as 
emphatically  and  as  decisively  as  any  of  the  great  principles 
which  lie  at  the  foundation  of  our  Government,  and  were  just 
as  strenuously  maintained. 

Mr.  GALLINGER.  Mr.  President,  I  know  the  Senator  pre- 
fers not  to  be  interrupted,  but  I  should  like  to  ask  him  how 
that  traditional  policy  is  to  be  squared  with  our  coastwise  laws. 

Mr.  BURTON.  Navigation  is  one  thing,  commerce  is  another. 
There  are  two  reasons  for  giving  a  monopoly  to  domestic  or 
coastwise  traffic  which  are  commonly  observed  the  world  over. 
One  is  the  avoidance  of  smuggling;  the  other  is  the  building 
up  of  a  merchant  marine.  Navigation  and  commerce  are  very 
widely  apart.  You  might  as  well  say,  "Why  does  a  nation  re- 
strict ownership  on  the  ground  but  place  no  restrictions  on  the 
air?" 

Mr.  GALLINGER.  If  I  understood  the  Senator  correctly— 
and  I  shall  not  interrupt  him  further— in  the  early  part  of  his 
most  interesting  address  he  cited  over  and  over  again  the  fact 
that  all  of  our  waterways  were  to  be  open  on  terms  of  equality 
to  all  the  nations  of  the  world. 

Mr.  BURTON.     Yes. 

Mr.  GALLINGER.  Under  that  system  I  am  sure  England 
could  have  engaged  in  our  coastwise  trade.  Later  on  we  legis- 
lated to  prohibit  it. 

Mr.  BURTON.  There,  again,  is  the  difference  between  com- 
merce and  navigation.  I  shall  treat  of  that  later  on. 

Mr.  GALLINGER.     I  can  not  see  the  difference;  but  still • 

Mr.  r&URTON.  The  Senator  from  North  Dakota  [Mr.  Mo 
CUMBEK]  informs  mo  that  Senator  Morgan  even  more  strongly 
expressed  himself  on  this  subject. 

45828—13421 


21 

Mr.  GALLINGER.  Wliile  the  Suitor  is  reading  what  has 
•  •anded  (o  him,  I  will  say  to  (lie  Senator  that  L  shall  bo 
delighted  to  listen  to  the  discussion  wheu-l«y  he  is  going  to 
differentiate  between  commerce  and  navigation.  If  navi 
does  not  control  commerce  in  a  very  important  particular,  I 
have  not  correctly  interpreted  the  term. 

Mr.  BURTON.  There  is  a  very  great  difference  between  the 
use  of  channels  and  the  privilege  of  trading  in  them  or  in 
towns  upon  them.  There  must  be,  just  so  long  as  nations  have 
their  policy  of  protective  duties  or  fiscal  regulations. 

Senator  Morgan  said : 

All  that  is  left  of  this  general  treaty  Is  the  general  principle  pro- 
vided in  article  8  of  the  Clayton-Bulwer  treaty.  That  is,  that  the  ves- 
sels of  all  nations  using  the  canal  should  be  treated  with  exact  equality, 
without  discrimination  iu  favor  of  the  vessels  of  any  nation. 

Again  he  says : 

Then  this  convention,  in  article  2,  proceeds  to  define  and  formulate 
into  an  agreement,  intended  to  be  world-wide  in  its  operation,  "  the 
general  principle  of  neutralization,""  established  in  article  8  of  the 
Clayton-BulWer  treaty  on  the  basis  of  the  treaty  of  Constantinople  of 
October,  1888,  relating  to  the  Suez  Canal. 

Nothing  is  given  to  the  United  States  in  article  2  of  the  convention 
now  under  consideration,  nor  is  anything  denied  to  us  that  is  not  given 
or  denied  to  all  other  nations. 

Putting  us  on  an  exact  footing  of  equality  with  them.  I  am 
much  obliged  to  the  Senator  from  North  Dakota  for  presenting 
this  to  me. 

Second.  Our  demands  in  relation  to  Canadian  waterways  in 
1888  to  1802. 

On  the  15th  of  July,  1912,  in  some  remarks  in  the  Senate  I 
set  forth  at  length  the  transactions  with  Canada  at  the  time 
mentioned.  The  Canadian  Government  in  council  had  in  sub- 
stance decreed  that  while  the  tolls  on  cargoes  carried  through 
the  Wei  land  Canal  should  be  20  cents  per  ton  on  eastbound 
freight,  yet  if  the  boat  went  as  far  as  Montreal  there  should  be 
a  rebate  of  18  cents  a  ton,  leaving  the  net  toll  only  2  cent^. 
This  gave  a  preference  to  the  port  of  Montreal  as  compared  with 
the  ports  of  the  United  States  on  Lake  Ontario,  the  St.  Lawrence 
River,  and,  in  fact,  upon  the  north  Atlantic  seaboard.  Its 
manifest  object  was  to  increase  the  importance  of  Montreal  as 
a  port  for  the  export  of  grain  and  other  commodities.  I  do  not 
wish  to  repeat  the  remarks  made  at  that  time.  They  appear 
on  pages  9065  and  IHKJO  of  the  CONGRESSIONAL  RECORD  for  the 
Sixty-second  Congress,  second  session. 

The  Senator  from  Georgia  [Mr.  SMITH]  on  last  Tuesday 
set  forth  at  length  the  messages  of  Presidents  Cleveland  and 
Harrison  and  the  memoranda  on  this  subject  in  the  State  De- 
partment, the  discussion  of  a  resolution  in  the  House  and 
Senate,  which  resolution  by  unanimous  vote  authorized  the 
President,  to  issue  a  proclamation  in  retaliation;  also  the  proc- 
lamation in  retaliation  of  August  18,  1892.  This  action  led  to 
a  revocation  of  the  regulation  of  the  Canadian  Government  by 
order  of  the  council,  so  that  equal  privileges  were  afforded  to 
the  ships  and  commerce  of  both  nations. 

The  distinct  assertion  by  all  of  our  statesmen  who  took  part 
in  this  controversy  or  declared  themselves  upon  the  subject  was 
that  by  the  treaty  of  1871  equality  of  treatment  was  secured 
not  only  for  our  shipping  but  for  our  citizens,  that  regard  must 
be  had  for  the  routes  of  transportation  to  prevent  discriniiua- 

4582&— 13421 


22 

tion  against  the  United  States  in  trade.  But  it  should  be  very 
carefully  noted  that  the  treaty  of  1871  did  not  contain  so 
strong  language  as  the  Hay-Pauncefote  of  1901.  Indeed,  it  is 
not  only  plausible  but  extremely  probable  that  the  language 
of  the  treaty  of  1871  was  in  mind  when  that  of  1901  was  drawn, 
and  that  the  object  was  to  secure  equality  beyond  the  possibility 
of  any  ambiguity.  The  language  of  the  treaty  of  1871  is: 

The  Government  of  Her  Britannic  Majesty  engage  to  urfjc  upon  the 
Government  of  the  Dominion  of  Canada  to  secure  to  the  citizens  of  the 
United  States  the  use  of  the  Welland.  St.  Lawrence,  and  other  canals 
in  the  Dominion  on  terms  of  equality  with  the  inhabitants  of  the 
Dominion. 

The  language  of  the  Hay-Pauncefote  treaty  is: 
The  canal  sJiall  lie  free  and  open  to  the  vessels  of  commerce  and  of 
war  of  all  nations  observing  these  rules  on  terms  of  entire  equality,  so 
that  there  shall  be  no  discrimination  against  any  such  nation,  or  its 
citi--ens  or  subjects,  in  respect  of  the  conditions  or  cJiaryes  of  truffle,  or 
othenoise. 

There  is  no  question  of  territory  involved  in  Canadian  canals, 
either  the  Welland  or  those  below  Lake  Ontario  beside  the  rapids 
along  the  St.  Lawrence  River.  They  are  all  within  the  Do- 
minion of  Canada.  It  was  not  necessary  to  acquire  the  land 
through  which  they  pass  to  build  a  canal  as  "  a  trust  for  the 
world."  The  argument  in  favor  of  the  right  of  exclusion  is,  we 
must  admit,  much  stronger  than  it  is  in  the  case  of  the  Panama 
Canal ;  yet  when  a  discrimination  in  tolls,  which  it  >was  alleged 
was  not  altogether  against  our  ships,  was  attempted  we  de- 
manded that  it  should  be  done  away  with,  because  it  discrimi- 
nated against  our  citizens  and  diverted  trade  and  transporta- 
tion which  naturally  belonged  to  our  own  country  in  another 
direction.  Can  we  afford  to  assert  the  principle  of  equality  in 
the  use  of  channels  when  it  benefits  us  and  our  trade,  and  at 
the  same  time  establish  another  and  entirely  opposite  rule  when 
the  canal  or  route  belongs  to  us? 

In  this  connection  it  might  be  well  for  us  to  consider  our  de- 
pendence upon  Canada  for  our  traffic  through  artificial  water- 
ways, especially  as  regards  the  Soo  Canal,  the  Welland,  and 
other  canals  parallel  to  the  rapids  in  the  St.  Lawrence.  It  will 
be  well  to  compare  the  American  traffic  through  them  with  the 
probable  coastwise  traffic  through  the  Panama  Canal.  In  case 
both  countries  shall  adopt  the  same  policy,  which  will  have  the 
advantage?  Through  the  connecting  *  waters  between  Lakes 
Superior  and  Huron  in  the  St.  Marys  River  there  is  a  traffic 
which  is  the  largest  through  any  waterway  in  the  world, 
except  that  through  the  Detroit  and  St.  Clair  Rivers.  The 
total  freight  passing  through  the  river  in  the  year  1913 
was  79,718,344  tons,  the  principal  articles  being,  respec- 
tively, iron  ore,  coal,  grain,  and  general  merchandise.  The 
iron  and  steel  business  in  the  United  States  has  gained  its 
supremacy  by  reason  of  the  abundant  supply  of  iron  ore  in  the 
State  of  Minnesota,  with  very  large  supplies  also  in  Wisconsin 
and  Michigan,  nearly  all  of  which  pass  through  this  canal. 
By  reason  of  the  abundance  and  cheap  transportation  of  these 
ores  the  United  States  has  taken  the  lead  among  the  nations 
in  the  production  of  iron  and  steel.  Of  course,  our  supply  of 
coal  must  also  be  taken  into  account,  but  the  iron  ore  supply 
and  its  ready  transportation  from  Lake  Superior  to  Lake 
Michigan  aud  Lake  Erie  constitute  the  real  basis  of  our  su- 
premacy. 

4582S— 13421 


23 

In  tliis  rivor  there  are  rapids,  to  overcome  which  two  lateral 
canals  have  been  constructed,  one  by  us  on  the  American  side, 
the  other  on  the  Canadian  side  at  the  expense  of  the  Canadian 
Government  and  under  its  control.  In  the  canal  on  the  Anu-ri- 
can  side  there  are  two  parallel  locks,  known  as  the  Poe  and  the 
Woitzel  Locks;  the  former  has  a  depth  of  water  1<x.~  feet 
and  the  latter  12.9.  In  the  canal  on  the  Canadian  side  there  is 
one  lock,  having  a  depth  of  19  feet.  A  new  lock  is  under  con- 
struction on  the  American  side,  more  ample  than  any  of  thos.; 
now  existing,  but  which  will  probably  not  be  finished  until 
October  of  this  year.  The  locks  on  the  American  side  are 
absolutely  incapable  of  carrying  the  total  amount  of  this  enor- 
mous traffic.  In  the  year  1,913  the  total  freight  passing  through 
the  Canadian  canal  was  more  than  that  through  the  American, 
in  round  numbers  42,000,000,  or,  more  exactly,  37,022,201  tons 
passed  through  the  American  canal  and  42,690,143  tons  through 
the  Canadian  canal.  Expressed  in  percentages,  54  per  cent  of 
the  freight  passed  through  the  Canadian  and  48  per  cent 
through  the  American. 

Suppose  a  policy  of  retaliation,  or  one  based  upon  the 
Panama  Canal  act  of  1!)12,  should  be  adopted  by  Canada? 
American  freight  would  be  shut  out  from  the  Canadian  canal, 
except  on  the  payment  of  tolls,  and  the  enormous  traffic  move- 
ment in  this  waterway,  having  a  valuation  of  eight  hundred 
and  sixty-five  millions,  would  ba  so  impaired  as  to  cause  an 
injury  to  our  industrial  and  commercial  interests  almost  beyond 
computation.  To  make  this  more  impressive,  it  may  be  stated 
that  of  the  total  traffic  through  this  Canadian  canal,  in  which 
free  passage  is  given  to  American  freight,  less  than  5.000,000 
tons  was  Canadian,  as  against  37,000,000  tons  of  the  United 
States,  all  of  which  was  part  of  the  coastwise  commerce  of 
this  country.  In  comparison  with  this  how  small  is  the  quan- 
tity which  is  likely  to  pass  through  the  Panama  Canal.  Prof. 
Johnson,  in  his  testimony  before  the  Committee  on  Interoceanic 
Canals,  April  14  last,  page  149,  estimates  that  during  the  initial 
years  in  which  the  Panama  Canal  is  to  be  utilized  the  net  ton- 
nage of  vessels  passing  through  will  be  some  10,500,000  a  year. 
Of  that  1,000,000  tons  net  tonnage  will  be  contributed  by  the 
coastwise  shipments,  which  existing  legislation  seeks  to  free 
from  tolls.  How  the  actual  carriage  will  compare  with  the 
estimated  tonnage,  no  one  can  tell.  If  I  were  to  give  my  own 
estimate  of  coastwise  traffic,  which  I  should  put  beside  that  of 
Prof.  Johnson  with  a  great  deal  of  deference,  as  he  has  given 
much  study  to  the  subject,  it  would  be  larger.  But,  in  any  event, 
the  comparative  amount  is  trivial,  not  one-twentieth  of  the  quan- 
tity of  coastwise  freight  which  now  passes  in  our  ships  through 
the  Canadian  canal  in  the  waters  connecting  Lake  Superior  and 
Lnke  Huron. 

It  is  for  us  to  pause  and  consider  this  situation  and  to  ask 
whether  we  can  aiTonl  to  make  such  a  discrimination.  Should 
the  regulations  continue  as  at  present  in  the  Canadian  canal  at 
the  Soo  there  will  be  no  burden  upon  us;  should  they  impose  tolls 
or  otherwise  exorcise  discrimination  we  should  be  subjected  to 
almost  incalculable  damage. 

The   situation   nt   the   s<>.>   does   not   describe  the  whole   of 
conditions  on  our  northern  border.     The  Canadian  (Jovernment 
is   about   to   complete   another   canal   at   the   Soo,   30   feet  in 
45828—13421 


24: 

depth,  and  a  waterway  from  Lake  Erie  to  Lake  Ontario  to 
replace  the  present  Welland  Canal,  and  in  connection  there- 
with is  preparing  to  construct  canals  and  improvements  in 
the  St.  Lawrence,  so  as  to  give  an  .outlet  30  feet  in  depth 
from  Lake  Erie  and  the  Great  Lake  system  of  navigation  to 
the  ocean.  The  benefits  of  such  a  route  to  transportation 
can  not  be  overestimated.  It  would  make  more  readily  avail- 
able to  the  markets  of  Europe  and  the  wrorld  all  the  mani- 
fold products  of  agriculture  and  industry  which  belong  to  the 
region  tributary  to  the  Great  Lakes.  At  present  the  draft 
of  boats  from  Lake  Erie  to  the  ocean  is  limited  to  14  feet  and 
the  length  to  approximately  250  feet,  notwithstanding  there 
are  already  many  ships  on  the  lakes  550  to  600  feet  in  length 
and  having  a  draft  of  more  than  20  feet.  Even  with  the  limita- 
tion of  the  present  channels,  from  Lake  Erie  through  the  Wel- 
land Canal  to  Lake  Ontario  and  the  St.  Lawrence,  there  is  a 
very  considerable  traffic.  The  number  of  tons  of  freight  passing 
through  the  Welland  Canal  in  1913  was  3,570,714,  of  which 
2,093,408  belonged  to  Canada  and  1,477,308  belonged  to  the 
United  States.  In  the  canals  around  the  rapids  in  the  St. 
Lawrence  there  was  a  somewhat  larger  amount  of  Canadian 
freight  amounting  to  2,837,019  tons,  while  in  vessels  of  the 
United  States  there  were  1,465,408.  In  these  canals  tolls  are 
charged,  but  there  is  entire  equality  between  Canadian  vessels 
and  vessels  of  our  own  country.  But  should  a  discrimination 
be  made,  as  this  is  a  coastwise  route,  it  would  appear  that  in 
both  the  Welland  Canal  and  those  of  the  St.  Lawrence  a  larger 
quantity  of  freight  would  be  discriminated  against  in  these 
channels  than  the  total  of  the  coastwise  traffic  which  will  pass 
through  the  Panama  Canal. 

The  slight  attention  given  in  these  debates  to  our  demand  from 
3888  to  1892  for  equal  privileges  in  the  Welland  Canal  and  other 
Canadian  channels  is  hardly  fair  to  those  who  advocate  the 
repeal  of  this  exemption.  During  the  debates  in  July  and 
August  of  1912  the  demand  was  made  that  the  supporters  of 
the  House  bill  should  reconcile  their  position  with  the  attitude 
of  the  United  States  on  this  question  during  the  administrations 
of  President  Cleveland  and  President  Harrison.  I  do  not  recall 
that  any  reply  was  made  to  that  challenge  of  1912  for  a  con- 
sistent explanation  of  our  course  in  1888  to  1892.  But  now, 
after  the  lapse  of  two  years,  the  explanation  is  offered  that 
neither  Canada,  nor  Great  Britain  acting  for  her,  ever  conceded 
that  they  were  wrong;  but  that  to  the  last  they  maintained  the 
correctness  of  their  position  and  yielded  merely  as  a  matter  of 
expediency.  But  does  even  that  afford  one  particle  of  justifica- 
tion for  us  to  insist  upon  this  preference? 

We  made  an  insistent  demand,  not  merely  by  diplomatic 
notes,  but  by  action  of  Congress  and  by  a  retaliatory  proclama- 
tion expressing  our  interpretation  of  the  principles  'involved  in 
the  treaty  relating  to  the  Welland  Canal  and  asserting  the  ob- 
servance of  our  traditional  policy.  The  action  taken  then  wras 
in  entire  harmony  with  declarations  theretofore  made  in  regard 
to  the  proposed  Isthmian  Canal  and  our  demands  in  regard  to 
other  waterways  in  foreign  countries  extending  over  100  years. 
It  must  be  conceded  that  the  position  taken  by  the  act  of  1912 
was  squarely  in  contradiction  to  that  of  1892. 
45828—13421 


25 

C;;n  we  now,  under  changed  conditions,  and  \vlion  wo  will  be 
benefited  by  obsvrvini;  a  different  rule,  afford  to  deHare  that 
our  deliberate  action  then  taken  was  wrong?  Was  ;• 
law  of  honor  and  patriotism  "i  1W2  and  another  in  1012? 
Does  it  require  only  20  years  to  change  the  law  of  fairness  be- 
tween nations? 

Fortunate,  thrice  fortunate,  is  that  country,  as  weil  as  that 
individual,  which  can  sustain  a  contention  in  its  own  interest 
and  obtain  benefit  by  maintaining  opposite  sides  in  successive 
controversies  according  to  its  own  sweet  will;  too  fortunate, 
indeed,  to  be  consistent  or  to  be  honest  with  ourselves  or  with 
the  world. 

It  is  maintained  that  to  favor  equal  treatment  in  tolls  at 
Panama  is  unpatriotic.  If  those  who  maintain  this  position 
are  unpatriotic,  were  all  the  Senators  and  the  Representatives 
and  the  two  Presidents  who  maintained  the  opposite  view  in 
the  four  years  mentioned  lacking  in  patriotism? 

The  argument  will  no  doubt  be  made  that  there  are  two 
distinctions  which  should  be  observed  in  determining  the 
status  of  the  Panama  Canal  as  a  v*aterway.  The  first  is  the 
difference  between  waters  entirely  within  the  limits  of  a  coun- 
try, which  may  be  called  national  waterways,  and  those  which 
flow  through  two  or  more  countries,  called  international  water- 
ways. In  the  latter  list  are  included  those  which  serve  as 
boundaries  between  two  countries.  It  has  been  maintained  in 
this  discussion  that  the  Panama  route  is  a  national  waterway, 
as  it  is  located  upon  territory  owned  by  the  United  States,  and 
thus  within  its  sole  jurisdiction.  Indeed,  the  very  extreme 
statement  has  been  made  that  we  could  not  respect  the  sugges- 
tion of  another  Government  to  make  all  tolls  equal,  because  it 
would  involve  an  abandonment  of  sovereignty.  Very  consid- 
erable stress  has  been  laid  upon  the  distinction  between  na- 
tional and  international  waterways  in  past  years,  but  with  the 
increase  of  commercial  relations  and  the  general  decrease  in 
military  operations  this  distinction  has  lost  much  of  its  impor- 
tance. At  present  the  practical  reason  for  the  regulation  or 
prohibition  of  foreign  ships  in  national  waters  is  the  prevention 
of  frauds  upon  the  customs  revenue. 

It  was  formerly  said  by  many  publicists  that  the  right  to  use 
a  river  flowing  through  two  countries  was  a  natural  right, 
while  the  right  of  a  foreign  vessel  to  navigate  a  river  located 
exclusively  in  one  country  was  a  conventional  right  or  depend- 
ent upon  treaty.  The  memorandum  of  Secretary  Foster  with 
reference  to  the  right  of  Canadian  vessels  to  navigate  the  Hud- 
son, to  which  reference  has  been  made,  pointed  out  this  distinc- 
tion. It  is,  nevertheless,  the  present  rule  to  allow  foreign  ves- 
sels to  enter  and  sail  upon  rivers  entirely  within  the  United 
States,  at  least,  if  they  connect  with  other  waters,  natural  or 
artificial,  extending  into  other  countries  or  to  the  sea,  such 
at  the  Mississippi,  the  Hudson,  the  Columbia,  and  the  bays 
along  our  coasts.  While  this  privilege  is  secured  in  many  cases 
by  treaty,  it  is  not  believed,  however,  that  the  exercise  of  the 
right  depends  upon  any  conventional  arrangement.  It  is  rather 
granted  as  a  matter  of  comity  with  foreign  nations. 

The  value  of  this  privilege  is  enlarged  by  the  customs  reor- 
ganization measure  adopted  last  year  and  the  regu'  at  ions  framed 
under  it.     Dating  back  almost  to  the  beginning  of  the  Govern- 
45S28— 13421 


26 

ment  there  was  a  distinction  between  ports  of  entry  and  ports 
of  delivery.  Foreign  boats  were  allowed  to  touch  at  ports  of 
entry,  but  not  at  ports  of  delivery-  The  reason  was  based  upon 
the  danger  of  smuggling.  By  the  customs  reorganization  act 
this  distinction  between  ports  of  entry  and  ports  of  delivery  has 
been  abolished  and  an  additional  number  of  ports  of  entry  have 
been  created  at  all  of  which  foreign  boats  may  stop.  At  an 
early  date  the  right  was  asserted  to  exclude  foreign  ships  from 
purely  national  waters  or  interior  bays,  like  the  Chesapeake 
and  the  Delaware,  but  this  right  has  not  been  asserted  in  recent 
years.  The  vital  question,  however,  is  whether  the  Panama 
Canal  is  on  the  same  footing  with  a  national  stream.  Clearly 
it  is  not.  A  strip  10  miles  in  width  was  granted  for  its  construc- 
tion, but  this  was  not  a  territorial  acquisition.  If  so,  it  would 
have  been  absolutely  contrary  to  our  settled  policy  with  refer- 
ence to  the  Republics  to  the  south  of  us.  For  this  strip  we  pay 
an  annual  rental  of  $250,000,  which  is  quite  inconsistent  with  a 
fee-simple  title.  A  width  of  10  miles  was  regarded  as  necessary 
for  the  convenient  construction  and  operation  of  the  canal. 
Material  was  obtained  from  this  area  or  zone  in  the  work  that 
was  done.  Also  material  was  deposited  upon  it.  Provision  was 
made  in  the  treaty  for  going  outside  the  zone  on  payment  of 
proper  compensation,  if  necessary  for  the  construction  of  the 
canal.  It  was  deemed  desirable  that  the  land  obtained  be 
permanently  held  for  the  habitation  of  those  engaged  in  the 
operation  of  the  canal  and  for  sanitary  and  police  control  in 
its  immediate  locality.  Had  the  mere  ground  through  which 
the  canal  is  excavated  been  obtained,  it  would  have  been  easy 
for  marauders  to  approach  it,  and  the  safeguarding  of  the 
health  of  the  employees  would  have  been  difficult.  The  lan- 
guage of  the  treaty  itself  expresses  in  the  clearest  terms  that 
the  grant  of  the  land  in  Panama  is  in  trust  for  a  certain  pur- 
pose and  not  for  territory  to  be  incorporated  in  the  United 
States  as  a  part  of  its  general  domain. 

As  compared  with  other  portions  of  the  United  States  the  dis- 
tinctions in  the  control  exercised  over  this  strip  are  very 
marked.  There  is  no  legislative  body.  There  is  no  provision  for 
elections.  A  governor  is  appointed  by  the  President.  In  the 
express  language  of  the  statute,  the  Canal  Zone  "  is  to  be  held, 
treated,  and  governed  as  an  adjunct  of  such  Panama  Canal." 
The  customs  laws  of  the  United  States  are  not  applicable  there, 
nor  have  the  inhabitants  of  this  strip  the  right  to  send  their 
merchandise  into  the  United  States  in  the  manner  granted  to 
the  people  of  our  country.  Imports  from  the  Canal  Zone  pay 
duties  at  our  customhouses  in  the  same  manner  as  imports 
from  a  foreign  country.  Imports  into  the  Canal  Zone  are  not 
subject  to  the  duties  imposed  by  our  laws.  The  War  Depart- 
ment has  assumed  the  authority  of  fixing  customs  regulations 
without  any  reference  to  Congress  whatever.  The  canal,  in- 
stead of  being  an  artery  of  commerce,  supplying  a  large  adjacent 
territory,  such  as  is  the  case  with  the  great  rivers  or  waterways 
of  the  United  States,  is  limited  to  furnishing  what  is  needed  for 
those  who  operate  the  canal  and  to  the  promotion  of  its"  traffic. 
Whatever  transshipment  there  may  be,  whatever  coaling  or  sup- 
ply stations  may  be  established,  are  but  incident  to  the  water- 
way between  the  oceans  and  are  provided  to  facilitate  traffic 
through  the  canal.  The  most  important  of  all,  however,  is  the 

45828—13421 


27 

fact  ihat  this  waterway  is  a  mere  connecting  link  between  the  two 
oceans,  less  than  f>()  miles  in  length,  and  is  constructed  as  a  part 
of  maritime  routes  of  great  length  providing  a  waterway  to  aid 
the  means  of  communication  between  nations,  many  of  which 
are  remote  from  the  canal  and  are  located  upon  seas  or  oceans. 

Second.  It  has  been  been  maintained  that  there  is  a  marked 
distinction  between  natural  and  artificial  waterways  in  the 
degree  of  control  which  may  be  exorcised  over  them  by  the 
countries  through  which  they  pass. 

The  more  recent  declarations  of  publicists  and  international 
lawyers,  however,  all  favor  the  idea  that  artificial  canals  con- 
necting great  bodies  of  waters  are  international  waterways. 
This  principle  was  asserted  in  the  most  unequivocal  language  in 
the  convention  relating  to  the  Suez  Canal  of  3  888.  The  duty  of 
a  country  owning  the  territory  through  which  a  canal  may  be 
constructed  to  afford  opportunity  for  its  construction  was  main- 
tained in  the  most  strenuous  manner  by  President  lloosevelt  in 
his  action  with  reference  to  Colombia. 

There  is  no  clearer  statement  of  the  American  view  on  the 
subject  than  that  contained  in  a  letter  from  the  Hon.  Lewis 
Cass,  our  Secretary  of  State  under  President  Buchanan,  to  Mr. 
Lamar.  our  minister  to  the  Central  American  States,  on  July  25, 
ISDS.  He  wrote,  in  referring  to  the  country  or  countries  through 
which  a  canal  might  be  constructed,  the  following: 

Sovereignty  Jias  its  duties  as  well  as  its  rights,  and  none  of  those 
local  governments  *  *  *  would  be  permitted,  in  a  spirit  of  east- 
ern isolation,  to  close  these  gates  of  intercourse  on  the  great  highways 
of  the  world  and  justify  the  act  by  the  pretension  that  these  avenues 
of  trade  and  travel  tclonf/  to  tJicm",  and  that  they  choose  to  shut  them 
or,  what  is  almost  equivalent,  to  encumber  them  with  such  unjust  regu- 
lations as  would  prevent  their  general  use. 

We  can  reach  no  conclusion  except  that  a  canal  constructed 
like  the  Panama,  under  a  concession,  the  aim  and  object  of 
which  is  merely  to  provide  a  connecting  waterway,  especially 
in  view  of  the  language  of  the  Hay-Pauncefote  treaty,  is  to  be 
considered  as  an  international  watercourse  and  subject  to  the 
rules  pertaining  to  natural  straits.  There  is,  of  course,  an  ex- 
ception to  this,  so  far  as  regards  the  necessity  of  adopting 
necessary  regulations  to  protect  against  hostile  attack,  the 
necessity  of  adopting  proper  regulations  to  insure  the  safety  of 
boats  in  passing,  to  provide  against  injury  to  locks  and  other 
constructions,  to  police  the  canal  and  enforce  sanitary  regu- 
lations. Again,  the  position  of  an  artificial  waterway  is  excep- 
tional in  that  the  cost  of  construction  allows  the  imposition  of 
tolls  as  a  compensation  for  the  expense  of  the  improvement, 
though  in  many  instances  the  improvement  of  natural  channels 
so  as  to  make  them  readily  available  for  navigation  is  very 
large  and,  in  kind,  the  same  as  the  building  of  artificial  water- 
ways. Indeed,  it  is  often  a  question  over  a  given  stretch  of  a 
river  whether  the  most  feasible  method  to  secure  navigation  is 
by  improving  the  main  stream  or  by  a  lateral  canal.  In  modern 
times  the  demand  is  that  navigation  have  free  scope,  without 
interruption  from  pirates,  from  payment  of  tribute,  or  from 
discrimination.  As  has  been  pointed  out,  there  is  no  nation 
which  has  been  quite  so  insistent  in  this  principle  as  our  own. 
The  tendency  of  recent  years  in  the  making  of  treaties  and 
agreements  is  altogether  against  discrimination  in  the  use  of 
artificial  waterways.  It  should  again  be  said  that  our  own 
45828—13421 


28 

policy,  as  exemplified  in  negotiations  with  Canada,  shows  that 
we  have  maintained  the  principle  that  when  a  canal  is  a  con- 
necting link  in  a  longer  route  afforded  by  rivers  or  by  sea  it 
must  be  open  on  equal  terms  to  all.  Every  declaration  made 
upon  this  subject  in  the  earlier  years  when  negotiations  were 
under  way  for  an  Isthmian  canal  would  condemn  in  the  most 
decisive  language  any  attempt  on  our  part  to  discriminate  in 
our  favor  in  any  canal  connecting  the  two  oceans. 

It  has  been  frequently  alleged  in  argument  here  that  as  we 
have  constructed  canals  and  improved  rivers  and  inland  water- 
ways within  our  borders  at  great  expense,  and  those  canals 
and  rivers  are  open  to  navigation  for  all  citizens  without  charge 
in  the  way  of  tolls — for  a  statute  passed  in  1884  abolished  all 
charges — our  coastwise  shipping  is  entitled  to  pass  through 
the  Panama  Canal  on  similar  terms  of  exemption.  In  meeting 
this  contention  we  may  pass  by  several  arguments  of  very 
great  importance,  namely,  that  the  Panama  Canal  is  an  extra 
territorial  enterprise,  and  in  this  respect  is  sharply  distin- 
guished from  the  improvement  of  our  inland  waterways;  also 
the  enormous  expense,  reaching  nearly  half  the  amount  ex- 
pended on  all  our  rivers  and  harbors  since  the  foundation  of 
the  Government;  also  that  from  the  very  outset  the  universal 
understanding  has  been  that  tolls  should  be  charged  on  ships 
rivalling  themselves  of  this  expensive  waterway  in  order  to 
meet  a  portion  of  the  expense.  The  conclusive  answer  to  this 
argument  is  that  our  inland  waterways,  free  though  they  may 
be  to  our  citizens,  are  also  free  to  the  boats  of  foreign  nations, 
so  that  if  this  argument  has  any  force  it  means  not  merely 
that  our  coastwise  shipping  should  be  exempt  from  charges, 
but  that  no  tolls  should  be  charged  on  any  ships,  foreign  or 
domestic,  going  through  the  Panama  Canal. 

In  stating  these  facts,  of  course  a  distinction  should  be  made 
between  navigation  and  commerce.  No  foreign  boat  is  allowed 
to  take  on  cargo  at  one  domestic  port  and  unload  it  at  another. 
This  fact  renders  the  privilege  of  navigation  in  minor  streams 
of  slight  importance  and  shuts  out  traffic  between  ports  of  our 
country.  The  privilege  of  navigation  nevertheless  exists. 

The  case  of  Olsen  against  Smith  has  been  quoted  as  an  argu- 
ment to  the  effect  that  we  can  allow  our  own  ships  in  the  coast- 
wise trade  to  pass  through  without  the  payment  of  tolls.  In- 
deed, a  considerable  number  of  Senators  seem  to  have  relied 
upon  this  decision  as  a  reason  for  their  vote  in  1912.  Without 
reverting  to  the  fact  that  a  decision  of  our  own  Supreme  Court, 
though  worthy  the  very  highest  respect  the  world  over,  is  not 
binding  in  a  controversy  between  ourselves  and  other  nations, 
the  conclusive  reason  why  this  case  does  not  settle  this  present 
controversy  is  the  fact  that  the  Hay-Pauncefote  treaty  grants 
entire  equality  to  nations,  their  citizens  or  subjects,  in  respect 
to  the  conditions  or  charges  of  traffic  or  otherwise ;  also  so 
that  there  shall  be  no  discrimination.  Thus  while  we  might 
exempt  our  coastwise  shipping  from  payment  of  tolls,  we 
should  also  be  required  to  exempt  the  coastwise  shipping  of 
other  countries.  If  our  coastwise  shipping  is  exempt  so  that 
boats  from  New  York  to  San  Francisco  do  not  pay  tolls,  there 
is  equal  reason  why  the  coastwise  ships  of  other  countries 
should  be  exempt. 
45828—13421 


29 

Tn  addition  to  the  United  SI, -i IPS.  there  nro  other  countries 
fronting  on  tlio  Atlnntic  or  Pacific,  or.  more  correctly,  on  the 
y  and  w»-  s.  which  would  us;»  Hioso  canals.  They 

•iada.  Mcxi'-D,  Guatemala,  Honduras,  Nicaragua,  and  Costa 
Jiica  in  Xorth  America,  and  f'nlonmia  in  South  America.  The 
countries  to  the  south  "f  us  front  on  the  Gulf  of  Mexico  or  the 
Carihhean  Sea  as  well  as  upon  the  Pacific, and  in  order  to  accom- 
modate their  traffic  between  different  coasts  of  their  respective 
countries  it  is  necessary  to  use  this  canal.  It  is  hardly  fair  to 
the  countries  to  the  south  of  us,  toward  which  we  have  made 
such  protestations  of  friendship  and  good  will,  to  allow  our 
coastwise  shipping  to  he  exempt  while  theirs  must  pay  charges. 
The  language  of  our  treaties  with  them,  to  which  I  will  make 
reference,  when  read  in  connection  with  the  llay-Pauucefote 
treaty,  precludes  the  idea  that  we  intended  to  discriminate 
against  them.  . 

One  argument  which  has  not  been  fully  presented  in  this  dis- 
cussion deserves  great  weight,  and  that  is  the  phraseology  of  our 
treaties  negotiated  prior  to  the  treaty  of  1901  in  reference  to 
coastwise  shipping.  If  it  was  intended  to  exempt  coastwise  ship- 
ping, why  was  not  reference  made  to  that  fact?  Practically  every 
treaty  in  which  there  is  any  reference  to  commerce  negotiated 
prior  to  that  time  either  contains  specific  language,  or  else  the 
exemption  is  necessarily  implied.  There  is  a  great  variety  of 
language  in  these  treaties,  but  I  am  unable  to  find  one  in 
which  there  is  any  reference  to  commerce  which  omits  reference 
to  the  subject  specifically  or  does  not  secure  exemption  by  neces- 
saiv  implication.  These  provisions  are  for  the  most  part  of 
four  classes:  The  first,  in  which  the  following  language  is  used, 
or  language  of 'similar  import: 

But  *  *  *  this  article  does  not  include  the  coasting  trade  of 
either  country,  the  regulation  of  which  is  reserved  by  the  parties,  respec- 
tively, according  to  their  own  separate  laws. 

Second  : 

The  reciprocal  liberties  of  commerce  [granted  in  the  treaty]  shall  be 
subject  always  to  the  laws  aud  statutes  of  the  two  countries,  respec- 
tively. 

Third : 

Contracting  parties  shall  enjoy  all  the  privileges  and  advantages,  with 
respect  to  commerce  or  otherwise,  which  are  now  or  which  may  here- 
after be  granted  to  the  citizens  or  subjects  of  the  most  favored  nation. 

Fourth : 

The  inhabitants  of  the  two  countries,  respectively,  shall  have  liberty 
freely  and  securely  to  come  with  their  ships  and  cargoes  to  all  such 
place  s  aforesaid,  to  which  other  foreigners  are  permitted  to  come  and  to 
enter  the  same. 

These  last  two  forms  would  not  permit  participation  in  coast- 
ing trade,  because  neither  the  favored  nation  or  other  foreigners 
are  granted  that  right.  The  first  two  forms  manifestly  are  not 
subject  to  any  doubt. 

Those  in  which  the  coastwise  exemption  does  not  specifically 
appear  are  for  the  most  part  treaties  made  many  years  ago,  or, 
if  recently,  with  remote  countries,  such  as  the  treaty  with 
Borneo  in  1  *"><),  that  with  the  International  Association  of  the 
Kongo  in  1801,  with  Korea  in  1882,  with  Egypt  in  1SS4,  with 
Servia  in  ISM.  th:.t  with  Prussia  in  17SH.  with  Tripoli  in  170G, 
and  that  with  Great  Britain  in  1815,  which  last,  however,  con- 
45828—13421 


30 

tains  an  express  provision  that  the  reciprocal  liberty  of  com- 
merce shall  be  subject  always  to  the  laws  and  statutes  of  the 
two  countries,  respectively. 

It  is  noteworthy  that  the  specific  exemption  of  the  coastwise 
trade  is  contained  in  the  treaties  with  the  following  States  to 
the  south  of  us:  Mexico,  Costa  Rica,  Nicaragua.  Honduras, 
Guatemala,  Salvador,  Venezuela,  Ecuador,  Chile,  Peru,  and  Brazil. 

The  treaties  pertaining  to  a  proposed  Isthmian  canal  are 
especially  significant.  In  that  of  1S4G  with  New  Granada  there 
arc  two  provisions.  Article  3  contains  the  usual  clause  exempt- 
ing-the  coastwise  trade  of  either  country.  Article  35,  which 
has  to  do  with  the  ports  of  the  Isthmus  of  Panama  or  any  road 
or  canal  across  the  Isthmus  that  may  be  made  by  the  Govern- 
ment of  New  Granada,  or  by  the  authority  of  the  same,  provides 
that  there  shall  be  no  other  tolls  or  charges  levied  or  collected 
from  the  citizens  of  the  JTnited  States  than  are,  under  like  cir- 
cumstances, levied  and  collected  from  the  Granadiau  citizens. 

The  Cass  treaty  of  November  26,  1857,  with  Nicaragua,  known 
as  the  Cass-Yrisarri  treaty,  in  article  2  reserves  the'  coastwise 
trade;  article  14  grants  transit  on  terms  of  equality  to  the 
Atlantic  and  Pacific,  and  contains  the  provision  that  no  higher 
charges  or  tolls  shall  be  imposed  on  the  conveyance  or  transit 
of  persons  or  property  of  citizens  or  subjects  of  the  United 
States  or  any  other  country  across  said  route  of  communica- 
tion than  are  or  may  be  imposed  on  the  persons  or  property  of 
citizens  of  Nicaragua.  This  treaty  was  not  ratified.  Other 
treaties  with  Nicaragua  and  other  countries  make  unequivocal 
reference  to  the  coastwise  trade. 

in  the  treaty  with  Panama  of  1903  there  is  in  article  19  an 
exemption  of  the  vessels  of  the  Republic  of  Panama  and  its 
troops  and  munitions  of  war  in  such  vessels  from  the  payment 
of  charges  of  any  kind.  This  shows  that  when  an  exemption 
was  intended  it  was  regarded  as  necessary  to  state  it.  The 
Frelirighuysen-Zavala  treaty,  made  in  1884  and  recommended 
by  President  Arthur  in  his  message  of  the  same  year,  but  with- 
drawn by  President  Cleveland  in  his  .first  annual  message  of 
1885,  contained  this  provision  in  article  14 : 

The  tolls  hereinbefore  provided  shall  be  equal  as  to  vessels  of  tho 
parties  hereto  and  of  all  nations,  except  that  vessels  entirely  owned 
and  commanded  by  citizens  of  either  one  of  the  parties  to  this  conven- 
tion and  engaged  in  its  coasting  may  be  favored. 

Thus  all  of  these  treaties — that  with  New  Granada,  the  pro- 
posed agreements  with  Nicaragua,  and  the  treaty  with  Panama — • 
show  that  in  all  our  negotiations  pertaining  to  an  isthmian 
canal  when  it  was  intended  to  exempt  coastwise  shipping  or  to 
grant  any  preferences  it  was  specifically  so  stated. 

Now,  the  Hay-Pa uncefote  treaty  of  1901  contained  no  exemp- 
tion of  coastwise  shipping,  but,  on  the  contrary,  the  very 
strongest  language  to  express  entire  equality. 

Is  it  to  be  believed  that  when,  through  a  series  of  years  in 
practically  all  countries  near  to  the  proposed  canal,  coastwise 
shipping  was  exempt  from  the  provisions  of  the  treaties  in  the 
most  definite  language  it  could  have  been  intended  to  claim 
exemption  or  preference  for  our  own  coastwise  shipping  in  this 
canal,  built  on  soil  acquired  from  a  foreign  country  and  con- 
necting the  two  great  oceans  of  the  world,  without  any  language 
whatever  on  the  subject?  If  it  was  intended  to  exempt  our 

45828—13421 


31 

roast \viso  shipping,  why  dirt  we  net  s:iy  so?  This,  too,  in  the 
face  of  our  o\vn  "  tradit  ional  policy"  asserted  against  Canada 
loss  than  10  years  before,  and  assort ort  contemporaneously,  at 
ID  principle,  in  negotiations  with  the  nations  having 
spheres  of  iiiilnoneo  in  the  Chinese  Kmpire. 

This  contention  is  strengthened  by  the  fact  that  almost  all  of 
our  shipping  is  that  engaged  in  the  coastwise  trade.  The  Sta- 
tistical Abstract  for  >\vs  the  registered  tonnage,  in  our 
foreign  trade  to  he  JJL'o.dOO  tons;  that  in  our  domestic  or  coast- 
•ade  is  G,7.*I7.<>0!)  tons,  or  more  than  seven  times  as  much. 
Is  it  credible  that  a  treaty  providing  equality  could  be  framed 
merely  to  include  the  limited  quantity  of  shipping  which  is  en- 
gaged'in  our  foreign  trade?  We  all  regret  that  it  is  so  small, 
bat  such  is  the  fact.  If  it  was  intended  that  our  coastwise  trade 
should  be  exempt,  the  provision  of  equality  becomes  a  practical 
nullity.  Special  importance  may  be  assigned  to  this  fact,  be- 
cause so  many  countries  to  which  reference  ha--  already  been 
made,  including  the  countries  to  the  south  of  us.  ;.lso  have  coast- 
wise shipping  which  would  utilize  this  canal. 

In  opposing  this  bill  for  repeal  nothing  has  been  more  fre- 
quent than  an  appeal  to  patriotism  and  to  national  pride.  Any 
such  appeal  must  necessarily  be  received  with  a  responsive 
spirit,  and  if  made  with  earnestness  it  stirs  the  heart.  But 
patriotism  does  not  mean  that  we  shall  disregard  treaty  obliga- 
tions or  swerve  from  policies  which  have  been  maintained  with 
persistency  and  zeal  through  all  our  national  life.  It  is  our 
duty  to  maintain  a  scrupulous  regard  for  national  faith  and  to 
follow  the  rules  which  we  have  laid  down  for  ourselves  as  well 
as  for  all  other  nations.  To  be  consistent  and  to  be  fair  to  all 
the  world,  that  is  patriotism.  If  we  retrace  our  steps  from  the 
ennobling  record  which  has  characterized  us  for  more  than  100 
years,  let  us  beware  lest  the  most  inspiring  notes  of  patriotism, 
though  uttered  with  the  tongues  of  men  and  of  angels,  may  be- 
come as  sounding  brass  aiid  a  tinkling  cymbal. 

45S2S— 131-11 

O 


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